Documente Academic
Documente Profesional
Documente Cultură
June 2012
Ron Dyer:
A dmitted as a solicitor of the New South Wales Supreme Court 1972 D iploma in Criminology 1975 M ember of the NSW Legislative Council between 1979 and 2003 M inister for Community Services, Minister for Aged Services and Disability Services 1995-1997 M inister for Public Works and Services 1997-1999 D eputy Leader of the Government in the Legislative Council 1995-1999 C hair, Legislative Council Standing Committee on Law and Justice 1999 2003 M ember of the Board of the Motor Accidents Authority of NSW since 2006
Crown Copyright 2012 NSW Government ISBN 978-0-7313-3549-7 The Way Ahead for Planning in NSW Recommendations of the NSW Planning System Review June 2012 Volume 2 Other Issues DISCLAIMER While every reasonable effort has been made to ensure that this document is correct at the time of printing, the State of NSW, its agents and employees, disclaim any and all liability to any person in respect of anything or the consequences of anything done or omitted to be done in reliance upon the whole or any part of this document. COPYRIGHT NOTICE In keeping with the NSW Governments commitment to encourage the availability of information, you are welcome to reproduce the material that appears in the Recommendations of the NSW Planning System Review: Volume 2 Other Issues for personal, in-house or non-commercial use without formal permission or charge. All other rights are reserved. If you wish to reproduce, alter, store or transmit material appearing in the Recommendations of the NSW Planning System Review: Volume 2 Other Issues for any other purpose, request for formal permission should be directed to the NSW Planning System Review, GPO Box 39, Sydney NSW 2001.
The Way Ahead for Planning in NSW | Recommendations of the NSW Planning System Review | Volume 2 Other Issues | June 2012
TABLE OF CONTENTS
Prologue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 . Recommendations in Volume 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 PART 1 The Planning Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Membership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Hearings and procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Power to determine matters arising under other legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Appeals from Planning Commission decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Provision of information about the Planning Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Other matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 PART 2 The Minister, Director-General and Department . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 The role of the Minister . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 The role of the Director-General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 The role of the Department . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 PART 3 Financial Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Local infrastructure funding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Funding for the Department of Planning and Infrastructure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 Funding information technology in a reformed planning system . . . . . . . . . . . . . . . . . . . . . . . . . . 52 Funding the Planning Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 Legislative cost shifting Planning Commission & Joint Regional Planning Panels . . . . . . . . . . . . . . . 53 Development application fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 Development contributions for universities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 PART 4 The Spatial Information Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 Legislative structure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 Co-ordinating committee for spatial information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Responsibility for preparation of the legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 PART 5 Integrity in the planning system . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 PART 6 The Sustainable Planning Act additional matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 Alternative community consultation processes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 Alternative decision-making processes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 Amendments to development proposals during assessment processes . . . . . . . . . . . . . . . . . . . . . 68 . Architectural review and design panels . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 Assessing development proposed by public authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 Assisting elected councillors in development decision making . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 Availability of assessment reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 Best practice guidelines for plan development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 Certification of code assessable development proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 Changes to Local Land-Use Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 Conditions of development consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 Definitions in the Sustainable Planning Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 Demolition limitations on development approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 Determining development proposed by public authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 Development applications with minor code non-compliances . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 Development to fit the exempt and code assessable classifications . . . . . . . . . . . . . . . . . . . . . . . . 87 Existing uses: Changes, expansion or intensification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 Incomplete applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 Independent Hearing and Assessment Panels . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 Independent Hearing and Determination Panels . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 Joint Regional Planning Panels . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 Land owners consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 Model delegations for development decision making in local councils . . . . . . . . . . . . . . . . . . . . . . 95 Modifications to existing approved development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
The Way Ahead for Planning in NSW | Recommendations of the NSW Planning System Review | Volume 2 Other Issues | June 2012
Names for applications to reflect purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 Plain English guide to the classification of development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 Potential cross border impacts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 Preamble to the Sustainable Planning Act? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 Register of consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 Removing consistency as a design criterion in assessments . . . . . . . . . . . . . . . . . . . . . . . . . . . 100 Stop the Clock Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 Verification of the stated development application values . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 PART 7 The Land and Environment Court additional matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 Hearing from objectors during conciliation processes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 . Costs orders application amendment during the appeal process . . . . . . . . . . . . . . . . . . . . . . . 104 Extension of orders able to be made in remedy or restrain matters . . . . . . . . . . . . . . . . . . . . . . . 104 Commissioners assisting Judges in Class 4 matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 Class 4 matters and related common law issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 Revocation of development consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 Challenges to validity of development consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 Costs orders in civil enforcement cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 Compliance costs/expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 PART 8 Councils additional matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 Council Order making generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 Drafting precision for orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110 Strict liability penalty notice offence false or misleading information . . . . . . . . . . . . . . . . . . . . . 111 PART 9 Enforcement policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112 PART 10 Environmental Impact Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 Accreditation for those preparing an EIS or supporting studies . . . . . . . . . . . . . . . . . . . . . . . . . . 115 Carbon accounting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116 Director-Generals requirements for Environmental Impact Statements . . . . . . . . . . . . . . . . . . . . . 116 Reviews of Environment Impact Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 PART 11 Former Aboriginal reserves and missions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 PART 12 Community Engagement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122 Assisting with the right to know . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122 Precinct committees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122 Project identification on the Departments website . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123 PART 13 Other reform measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124 Planning in the unincorporated area of the State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124 Revitalisation of the Newcastle Central Business District . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125 Transferable development rights to agricultural land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126 PART 14 Certification matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 The role of private certifiers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 Final and interim occupation certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129 PART 15 Rejected matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131 Matters outside the scope of our review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131 Rejected matter An absolute right to develop . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131 Rejected matter Commercial viability of a proposed development . . . . . . . . . . . . . . . . . . . . . . . 132 Rejected matter Commercial viability of existing businesses . . . . . . . . . . . . . . . . . . . . . . . . . . . 132 Rejected matter Deemed approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 Rejected matter Past performance of a development applicant . . . . . . . . . . . . . . . . . . . . . . . . 133 Rejected matter Property values . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134 Rejected matter Use of public positive covenants by councils . . . . . . . . . . . . . . . . . . . . . . . . . . 134 Glossary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136 Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140 Appendix 1: Terms of Reference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
Note: References to Volume 1 are references to: The Way Ahead for Planning in NSW Recommendations of the NSW Planning System Review Volume 1 Major Issues. Published May 2012, ISBN 978-0-7313-3529-9
The Way Ahead for Planning in NSW | Recommendations of the NSW Planning System Review | Volume 2 Other Issues | June 2012
Prologue
Prologue
In Volume 1 of our Review Paper, we set out the major reforms that are necessary, in our opinion, to reshape the planning system of New South Wales to make it more ecologically, economically and socially responsive. The principal focus of Volume 1 was the broad structure of (and major elements for) the Sustainable Planning Act. We also outlined the reasons for (and broad functions of ) the two other pieces of legislation we consider necessary to support the reform process, they are: the Planning Commission Act to establish the membership, functions, powers and processes of the independent Planning Commission the Spatial Information Act to facilitate a whole of government approach and foundational basis for all spatial information held across government and local government. It will permit external private sector service to integrate data concerning telecommunications networks, gas pipelines and the like into a common spatial database. In addition, this volume also sets out a range of more specific matters we consider need to be addressed in the drafting of the Sustainable Planning Act, if it is to provide a coherent framework for a reformed planning system. We should note, at this point, that a deal of the more minor administrative elements of the Environmental Planning and Assessment Act 1979 will need to be carried over into the Sustainable Planning Act and its supporting regulations. This must be undertaken in a fashion that does not detract from the core objective discussed in Volume 1 of adopting best drafting practice in the preparation of this legislation. Such adoption is necessary to produce principal legislation in as simple, narrative and readable form as possible with the necessary complexities contained in schedules or regulations. As we discussed in Volume 1, the present planning legislation is a complex and almost incomprehensible alphabet soup and entirely inaccessible to ordinary readers. Importantly, this volume also sets out the detailed discussion on and recommendations for the effective integration of former Aboriginal reserves and missions into the planning system. We acknowledge that this process will take a considerable period of time. Addressing it, however, in our view is not merely a land use planning issue but it is also an important social justice step along the path to reconciliation. We have provided further material on financial matters as sufficient funding for a broad range of reform processes is essential if they are to succeed. Crucially in this regard, if efficient but more immediate use of accrued local infrastructure contributions held by councils can be triggered, there is potential for a significant short-term stimulus to the States economy to be achieved. In Volume 1, we noted that we had made a range of recommendations addressing issues of integrity within a reformed planning system. We noted that we had received a submission from the Independent Commission Against Corruption that had made 16 specific recommendations and that we would set out, in this volume, how we have responded to them. Part 5 of this volume sets out those recommendations and how we have dealt with them.
The Way Ahead for Planning in NSW | Recommendations of the NSW Planning System Review | Volume 2 Other Issues | June 2012
Although a wide range of matters concerning private building certification were raised with us during the consultation process, for the reasons set out in Volume 1, it has not been appropriate for us to undertake, as part of a review of the planning system, what would have been, in effect, a review of the entire system of regulation of the building industry. There are, however, a quite limited range of areas where private certification and the planning system intersect and some additional matters concerning private certification are therefore dealt with in this volume. Finally, we have not considered it appropriate to canvass all of the matters that were set out in the Issues Paper1 we released in December 2011 that were not adopted by us for a reformed planning system. However, we have felt it desirable to set out some brief comments on matters not properly within the scope of our review and to explain why a small number of specific matters that had loomed large during the consultation process were specifically rejected by us.
Conclusion
We consider that the wide range of recommendations we have made in Volumes 1 and 2 of our Review Paper constitute an appropriate basis for reforming the New South Wales planning system that will free it from being a major impediment to economic activity in the State whilst, at the same time, restoring public confidence in the underlying integrity of the system.
1 The way forward for planning in NSW? NSW Planning System Review, December 2011 ISBN 978-0-7313-3968-6
The Way Ahead for Planning in NSW | Recommendations of the NSW Planning System Review | Volume 2 Other Issues | June 2012
Recommendations in Volume 2
Recommendations in Volume 2
The Planning Commission
1. he Chairperson of the Planning Commission is to be appointed on a full-time basis. T 2. he Chairperson of the Commission is to be a Judge of the Land and Environment T Court, with the appointment of an additional Judge to the Court and the immediate secondment of that Judge to the position of Chairperson of the Planning Commission. 3. he Land and Environment Court Act 1979 is to incorporate a provision that will permit T any Judge of the Court to be able to act as the Chairperson of the Commission. Such a provision will provide a defined pool of persons who would be able to act as Chairperson, in the event that the permanently assigned Chairperson took leave and it was desirable to make a replacement during that period of absence. 4. he Judge selected to be appointed and seconded to the Planning Commission must T also have the necessary skills and attributes to perform the role of a Judge of the Court, as well as those necessary to fulfil the role at the Planning Commission. 5. esponsibility for selection of the Chairperson of the Planning Commission is to R lie with the Attorney General with the concurrence of the Minister for Planning and Infrastructure. 6. he Chairperson of the Planning Commission is to exercise the following functions: T preside over determination processes for complex and/or controversial projects determine the composition of Panels to hear and determine matters over which the Chairperson does not preside allocate minor matters to single members of the Commission for determination, including modification matters that can be dealt with on the papers run the selection process for other members of the Commission run induction training for new members of the Commission establish a continuing education programme for members of the Commission ensure that the Commissions processes are managed to meet performance criteria established (and published) for the efficient discharge of the Commissions role undertake annual performance reviews for other members of the Commission be responsible for preparation of the Commissions annual report manage the resources of the Commission in an efficient and cost-effective fashion. 7. ll of the costs of the Chairperson of the Planning Commission (including of any Judge A acting during any absence of the Chairperson) are to be met from its budget and reimbursed to the Department of Attorney General and Justice by the Department of Planning and Infrastructure.
The Way Ahead for Planning in NSW | Recommendations of the NSW Planning System Review | Volume 2 Other Issues | June 2012
8. he process for selecting Commissioners of the Planning Commission, whether full-time T or part-time, is to be by public advertisement and recommendation to the Minister by a selection panel comprising the following: the Chairperson of the Commission the Director-General of the Department of Planning and Infrastructure an independent person nominated by the Chairperson (with the concurrence of the Minister). 9. ven if an existing Commissioner seeks reappointment, the position should usually be E subject to a contestable advertising process. However, if the Chairperson recommends that a direct reappointment should be made, then the Minister may agree to this. Full-time Commissioners should hold appointment for seven years and be eligible for a second term only. 10. art-time Commissioners are to be appointed for up to three years with a maximum P period of nine years. 11. he qualifications of Commissioners shall remain as provided for in Schedule 3 of the T present planning legislation. 12. ommissioners (other than the Chairperson) should not be judicial officers. C 13. he number of persons able to be appointed as Commissioners is not to be limited. T 14. he power to appoint casual Commissioners, if there is a particular workload issue or a T need for highly specialised expertise, is to be retained. 15. ith the concurrence of the Chief Judge and of the Chairperson, a Commissioner of W the Land and Environment Court is to be able to be appointed to chair a panel or to sit on a panel of the Planning Commission (if it were to be chaired by the Chairperson of the Commission). 16. f a Commissioner of the Court were to take part in a Planning Commission I determination process, the costs of the Commissioners participation is to come from the budget of the Planning Commission. 17. he Chairperson, any acting Chairperson or any seconded Commissioner of the Court T is not to perform role of investigating, reviewing and/or advising the Minister on any matter that the Minister might have referred to the Planning Commission. 18. ll matters to be dealt with by the Planning Commission are to have a proper A public hearing. 19. earings are not to be held in courtrooms and venues should be arranged in as informal H a fashion as is possible, consistent with the scope of the likely participation in and public attendance at the hearing. 20. atters that are to be considered by the Commission are to be dealt with by a panel M that is selected by the Chairperson of the Commission. 21. rior to any public hearing of the Commission where there is likely to be significant P public participation or involve technically complex material, there is to be a public planning discussion well prior to the date of the public hearings. 22. he public hearing process for the Commission is to operate according to published T guidelines that do not impose mandatory restrictions or time limits on those participating but control of the hearing is to lie with the panel conducting it.
The Way Ahead for Planning in NSW | Recommendations of the NSW Planning System Review | Volume 2 Other Issues | June 2012
Recommendations in Volume 2
23. he Planning Commission Act is to provide that those taking part in a public hearing T can only be represented by an external lawyer or paid agent with the permission of the panel hearing the matter if, and only if, the panel is satisfied that there is some public interest reason why this should be permitted. 24. ompanies are to be able to be represented by directors or employees of the company; C the Department by its employees; councils by councillors or council officers and individuals able to speak on their own behalf. 25. ssociations and community groups are to be able to appoint one of their members to A speak on their behalf. 26. he Planning Commissions processes must remain distinctly different from those T of a Court: he process is to be inquisitorial rather than adversarial. T There is to be no cross-examination processes (whether by lawyers or agents if permitted or by any other participants) of those presenting information during hearings. The Commission panel members are to undertake the questioning of those participating. The rules of evidence are not to apply. Those participating are not to be sworn in. Transcripts are not automatically to be taken of the proceedings although, with permission of the panel, recording may be allowed if there were some special circumstance demonstrated why this might be warranted if recording were to be permitted, the costs of doing so should be met by the person or entity requesting permission for this to occur. 27. he Commission is to give reasons for all its decisions explaining why the decision has T been made. The decisions are to be made public and, if not given at the end of the Commission hearing, are to be notified to all those who participated in the hearing and published on the Commissions website. 28. ll concurrence functions, no matter what the legislative provision that makes the A approval necessary, are to be vested in the Commission when making a decision about a development proposal. 29. ppeals on questions of law are to be on the same basis as that which arises in the Land A and Environment Court: against decisions made by a panel of the Planning Commission presided over by the Chairperson should lie to the Court of Appeal (this being the position that applies when a merit appeal determination is made by a Judge of the Land and Environment Court). against decisions made by any other panel of the Planning Commission should lie to a Judge of the Land and Environment Court (this being the position that applies for decisions made by Commissioners of the Court) and then to the Court of Appeal. 30. he Commission is to prepare and publish a plain English step-by-step guide to T its processes from how a matter comes into its remit to how a decision is made, publicised and its effect. 31. ll secretariat support is to continue to be provided by the Department of Planning and A Infrastructure, but be independent of the Department and remain in a separate office.
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32. he head of the Commissions secretariat is to be responsible to the Chairperson of the T Planning Commission for hearing process matters and to the relevant senior officer of the Department for administrative and personnel matters. 33. he Minister responsible for the Sustainable Planning Act is to be the Minister T responsible for the Planning Commission Act. 34. eneral administrative support for accounting, payroll and similar functions are to G continue to be provided by the Department. 35. he Government consider the early enactment and coming into effect of the Planning T Commission Act to enable the start of reforms through the Planning Commission process in determining whether or not to approve major development proposals.
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Recommendations in Volume 2
Financial matters
Local infrastructure funding Deriving local contributions
50. he Sustainable Planning Act is to include provisions for the three methods for T deriving local infrastructure contributions currently provided for in the present planning legislation.
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55. f the Director-General modifies a plan, the council may request the proposed I modification be referred to the Planning Commission for determination. 56. Planning Commission determination on a Local Infrastructure Plan is to be treated as A would an application for a project determination.
Fitting a Local Infrastructure Plan into the unitary planning document framework
60. ll local infrastructure contributions plans are to be consolidated into a single Local A Infrastructure Plan and incorporated into the Development Control Plan in the unitary planning document for a council. 61. his consolidation is to take place when the council translates its Development Control T Plan to the standard template for such plans.
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Recommendations in Volume 2
Legislative cost shifting Planning Commission & Joint Regional Planning Panels
68. ost recovery from councils is not to be included in the Sustainable Planning Act when C either the Planning Commission or Joint Regional Planning Panels act as consent authorities for development on land in a councils area. 69. he State is to forgive debts that have accrued (and will continue to accrue) under T section 23O of the present planning legislation until its repeal is effected. 70. he present provision requiring a council to meet the cost of any Independent Hearing T Assessment Panel that it might establish is to be retained. 71. similar provision is to be incorporated for any Independent Hearing and A Determination Panel or any Architectural, Design and/or Heritage Assessment Panel.
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Recommendations in Volume 2
85. ny amendments are to be notified on the assessing bodys website. A 86. or merit and impact assessable development, there is to be electronic notification to F any persons who have notified the assessing body that they wished to be informed of any amendments or who have already lodged a submission.
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Recommendations in Volume 2
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Impact assessable
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Recommendations in Volume 2
117. f such an amendment is made by the proponent, the application will be dealt with as I code assessable. 118. n the alternative, if the assessing officer considers that the non-compliance is minor, I the assessing officer can elect to consider the acceptability or otherwise of the noncompliant element without undertaking a full assessment of the overall project.
Incomplete applications
128. pplications that are not complete prior to the day upon which the application is A scheduled to be made available, physically or electronically, for public comment shall be rejected and shall be regarded as not having been lodged.
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Recommendations in Volume 2
Register of consents
149. he Sustainable Planning Act is to require electronic registration of future development T consents and permit (but not mandate) the digital back capture of existing development consents. 150. ll consent authorities (other than the Land and Environment Court and the A Planning Commission) are to be required to ensure that any consent issued is electronically registered. 151. or consents given as a consequence of determinations of the Planning Commission, the F Department of Planning and Infrastructure is to be responsible for electronic registration. 152. or consents given as a consequence of orders made in Land and Environment Court F proceedings, the consent authority whose role has been assumed by the Court is to be responsible for electronic registration. 153. ny person or entity (other than a council) is to be required to notify the relevant A council(s) that a consent has been electronically registered.
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154. he Department of Planning and Infrastructure, in co-operation with the Office of T Local Government, is to discuss with the Local Government and Shires Association a commencement date for electronic registration of consents. 155. he register is to be the authoritative repository of all development consents issued on T or after the operative date of electronic registration. 156. or any back capture of consents, the consent authority is to be relieved of the F requirement to maintain physical records after publication on an electronic register. 157. ata custodianship arrangements, including determination of whether there should be D a central register or separate registers for each council, is to be undertaken by the Coordinating committee for spatial information.
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Recommendations in Volume 2
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Compliance costs/expenses
176. broader costs/expenses reimbursement order making power should be available in A civil and criminal enforcement proceedings brought under the Sustainable Planning Act to enable orders to be made to require the compliance/investigation costs/expenses of the enforcing body to be reimbursed.
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Recommendations in Volume 2
Enforcement policies
184. he Department of Planning and Infrastructures compliance and enforcement policies T be revised after passage of the Sustainable Planning Act. 185. he revision is to be undertaken under the supervision of the Planning Advisory Board T with implementation to take place after the Minister has considered the Boards advice on the proposed revised policies. 186. he Minister for Planning and Infrastructure write to the Minister for Local Government T asking that Minister to request the panel reviewing the Local Government Act 1993 to consider whether councils should develop or revise compliance and enforcement of policies of a comprehensive nature (not merely for matters arising under the Sustainable Planning Act).
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196. he assessing bodies seeking the peer review shall nominate three proposed peer T reviewers from which the project proponent can select the reviewer to be commissioned. 197. he peer reviewing is to be undertaken at the proponents expense. T 198. f peer reviewing is required, an additional period of five working days shall be added to I the statutory assessment period for the project. 199. he results of any peer review are to be published on the assessing authoritys website. T 200. his process is to be given effect by regulation so that it can be reviewed after the expiry T of 12 months.
Community Engagement
Assisting with the right to know
207. he continuing professional development working group recommended in Volume 1 T Part I is to incorporate a module on opportunities for active communication with the community in the program that they develop.
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Recommendations in Volume 2
Precinct committees
208. he Department of Planning and Infrastructure is to convene a working group T comprising representatives of the Office of Local Government and the Local Government and Shires Association and representatives of those councils currently operating a precinct committee system wishing to be involved in the working group. 209. he task of the working group is to produce a plain English guide to best practice in the T establishment, roles and operation of precinct committees.
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216. hese legislative provisions are not to come into effect until the Government is satisfied T that an appropriate scheme for doing so has been developed by the Department of Planning and Infrastructure, in conjunction with landholder interests in the identified area, Newcastle City Council and the Mines Subsidence Board.
Certification matters
Final and interim occupation certificates
218. nly one Interim Occupation Certificate is to be permitted for any single aspect of a O particular project. 219. nterim Occupation Certificates are to lapse after five years. I
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will also ask for written submissions from interested parties before asking them to make submissions to the commission in person. Consistent with the current provisions of the Act, if the Planning Assessment Commission determines a development application after conducting a public hearing at the Ministers request, with an opportunity for the community to make submissions and participate in the investigation of the proposal, there will be no appeal rights for applicants and third parties for applications under part 4 of the Act. This will ensure that the publics participation in the process cannot be undermined either by an applicant or a third party following the report of the Planning Assessment Commission, merely because they did not agree with the report of the independent umpire.4
As a consequence, all such proposals are now determined by the Commission under delegation from the Minister. The Commission also has the power to require modification to a proposal before consent will be granted (provided the modification falls within the general scope of the original application). Matters to be determined by the Commission include the modification of projects subject to an existing Ministerial or Commission determination. Applications to modify an approved project may be subject to further public exhibition and submission. Decisions of the Commission may be appealed to the Land and Environment Court on the merits only if the Commission has not held a public hearing into the proposal5. What constitutes a public hearing for these purposes is discussed below. Decisions of the Commission may be appealed on a question of law to a Judge of the Court. The additional roles of the current Commission are: to advise on planning and development matters, Environmental Planning Instruments and administration or implementation of the present planning legislation to review any aspect of or part of a development or activity to hold a public hearing into any matter subject of a review or preparation of advice to review the creation or abolition of a development area to undertake functions of a regional panel where ordered by the Minister to carry out the functions of a regional panel where no regional panel has been appointed.
Membership
Currently, the Commission functions with a part-time Chairperson and a number of parttime Commissioners limited by the present planning legislation to nine in number6. These Commissioners are supplemented, as needs arise, by using the chairs of the Joint Regional Planning Panels and other experts as casual Commissioners. The Chairperson and the Commissioners are appointed for up to a maximum three year term and may be reappointed to a maximum of six years.
4 ansard Transcript, Legislative Assembly (16 June 2011) Hon. Brad Hazzard MP, Minister for Planning and H Infrastructure for the Environmental Planning and Assessment Amendment (Part 3A Repeal) Bill 2011, page 2592 see http://www.parliament.nsw.gov.au/prod/parlment/hansart.nsf/V3Key/LA20110616032?open&refNavID=HA8_1 5 Environmental Planning and Assessment Act 1979, section 23F 6 Environmental Planning and Assessment Act 1979, Schedule 2, clause 2
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7 Environmental Planning and Assessment Act 1979, Schedule 2, clause 2 8 dministrative Decisions Tribunal Act 1979, section 17 and Workplace Injury Management and Workers Compensation A Act 1998, section 369 9 Supreme Court Act 1970, section 37B
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consult the Chief Judge of the Court on any proposed appointment. The normal Cabinet and Governor-in-Council process would follow. The Chairperson of the Planning Commission will exercise the following functions: preside over determination processes for complex and/or controversial projects determine the composition of Panels to hear and determine matters over which the Chairperson does not preside allocate minor matters to single members of the Commission for determination, including modification matters that can be dealt with on the papers run the selection process for other members of the Commission run induction training for new members of the Commission establish a continuing education programme for members of the Commission ensure that the Commissions processes are managed to meet performance criteria established (and published) for the efficient discharge of the Commissions role undertake annual performance reviews for other members of the Commission be responsible for preparation of the Commissions annual report manage the resources of the Commission in an efficient and cost-effective fashion. All of the costs of the Chairperson of the Planning Commission (including of any Judge acting during any absence of the Chairperson) would be met from its budget and reimbursed to the Department of Attorney General and Justice by the Department of Planning and Infrastructure.
Commissioners
The process for selecting Commissioners of the Planning Commission, whether full-time or part-time, should be by public advertisement and recommendation to the Minister by a selection panel comprising the following: the Chairperson of the Commission the Director-General of the Department of Planning and Infrastructure an independent person nominated by the Chairperson (with the concurrence of the Minister). Even if an existing Commissioner seeks reappointment, the position should usually be subject to a contestable advertising process. However, if the Chairperson recommends that a direct reappointment should be made, then the Minister may agree to this. Full-time Commissioners should hold appointment for seven years and be eligible for a second term only. Part-time Commissioners should be appointed for up to three years with existing Commissioners able to be reappointed. A maximum period of nine years should apply to part-time Commissioners. The qualifications of Commissioners shall remain as provided for in Schedule 3 of the present planning legislation. This generally parallels the process used for the appointment of Commissioners of the Court. Commissioners (other than the Chairperson) should not be judicial officers10. The number of persons able to be appointed as Commissioners should not be limited, but should be determined by the Government from time to time after consultation by the Minister for Planning and Infrastructure and the Chairperson of the Planning Commission.
10 For the purposes of the Judicial Officers Act 1986
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Currently, it is possible to appoint casual Commissioners if there is a particular workload issue or a need for highly specialised expertise and a casual Commissioner may be appointed on recommendation of the Chairperson. This should remain.
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If the matter is determined without a public hearing, a merit appeal lies to the Land and Environment Court. If a public hearing is held, no merit appeal lies to the Court12. The Commissions website publishes what it says constitute the processes for holding a public hearing:
8. Application determined after a Public Hearing directed by the Minister 8.1 Prior to the preparation of the Director Generals Environmental Assessment Report for an application, the Minister may request the Commission to first review the application by conducting a public hearing. In these cases, the Commission will provide a report to the Minister following the public hearing. The Commissions report is required to be considered in the Director Generals Environmental Assessment Report. 8.2 If a public hearing has been held and the application is subsequently delegated to the Commission for determination, the Commission may determine the application without holding a public meeting. The members of the Commission who determine the application will be different to those who conducted the public hearing.13
This process purports to satisfy the requirements for holding a public hearing and remove any merit appeal to the Court. However, there are two fundamental defects in this process: first, the hearing is to be conducted prior to finalisation of the assessment report of the proposal. As a consequence, those conducting the hearing cannot be properly informed of the merits of the proposal; the validity of any objections that have been made to it; or the conditions that might be proposed, if it were to be approved. second, the panel of the Commission to determine the matter is to be constituted differently from the panel that undertook the initial hearing. This does not constitute a panel hearing and determining. Those who have lodged submissions have a right to be heard by those who make the decision about the merits of the proposal. However, we do not propose that the Planning Commission should operate on any public meeting basis, but that all matters dealt with are to have a proper public hearing. If a proposed development is uncontroversial, such a hearing may be little more than a formal process but, nonetheless, would involve an opportunity for the panel to ask questions about the proposed conditions of consent and satisfy themselves that it was appropriate to approve the project and the proposed conditions. As to applications to modify a project that had been approved by the Planning Commission, it may be that the modifications themselves are controversial and have attracted a significant number of submissions. In that case, a public hearing should be held. In other cases that are uncontroversial and only involve minor modifications, the Chairperson of the Planning Commission may consider that it is appropriate that they be dealt with on the papers, but only after giving the assessing body (the Department of Planning and Infrastructure), the relevant council or councils and the project proponent the right to be heard in public, before making a determination, if any of them wish that this take place. Hearings should not be held in courtrooms and venues should be arranged in as informal a fashion as is possible, consistent with the scope of the likely participation in and public attendance at the hearing.
12 Environmental Planning and Assessment Act 1979, section 23F 13 See http://www.pac.nsw.gov.au/LinkClick.aspx?fileticket=ddF5xG-8-58%3d&tabid=56
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Pre-hearing processes
There will be public hearings of the Planning Commission where there is likely to be significant participation because of the number of objectors or supporters wishing to be heard or because of the complexity of the technical material that will need to be the subject of public examination. In these cases, the person designated to preside over the particular panel should hold a public planning discussion, well prior to the date of the public hearings, to sort out the order of presentation and any other process matters that need to be considered.
Right to be heard
The public hearing process for the Planning Commission should operate according to published guidelines that do not impose mandatory restrictions or time limits on those participating. Control of the hearing should lie with the panel conducting it (including organising the timing and order of hearing from those who wish to be heard and setting limits on speaking times so as to avoid unnecessary repetition) whilst still providing a fair and transparent decision-making process. The Planning Commission Act should provide that those taking part in a public hearing can only be represented by an external lawyer or paid agent with the permission of the panel hearing the matter if, and only if, the panel is satisfied that there is some public interest reason why this should be permitted. Companies should be able to be represented by directors or employees of the company; the Department by its employees; councils by councillors or council officers and individuals able to speak on their own behalf. Associations and community groups would be able to appoint one of their members to speak on their behalf.
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against decisions made by any other panel of the Planning Commission should lie to a Judge of the Land and Environment Court (this being the position that applies for decisions made by Commissioners of the Court) and then to the Court of Appeal16.
Other matters
Administrative support
The current Commission is supported by a small independent secretariat (also serving the Joint Regional Planning Panels), comprising of staff seconded from the Department of Planning and Infrastructure. Because it is desirable to make it expressly clear that the Planning Commission is not a Court, all secretariat support should continue to be provided by the Department of Planning and Infrastructure, but independent of it and remain in a separate office. The head of the secretariat should be responsible to the Chairperson of the Planning Commission for hearing process matters and to the relevant senior officer of the Department for administrative and personnel matters (a position analogous to that of the Registrar of a court). The Minister responsible for the Sustainable Planning Act should also be the Minister responsible for the Planning Commission Act. General administrative support for accounting, payroll and similar functions are integrated with these general functions within the Department and should continue to be provided by the Department in this fashion.
16 Land and Environment Court Act 1979, section 56A 17 See http://www.pac.nsw.gov.au/LinkClick.aspx?fileticket=9wL7ABHhvzY%3d&tabid=76 18 See http://www.pac.nsw.gov.au/CodeofConduct/tabid/58/Default.aspx 19 See http://www.pac.nsw.gov.au/LinkClick.aspx?fileticket=ddF5xG-8-58%3d&tabid=56 20 See http://www.pac.nsw.gov.au/PACRegister/tabid/60/Default.aspx 21 See http://www.coi.nsw.gov.au/pdf/HowTheyWork.pdf
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Recommendations
1. he Chairperson of the Planning Commission is to be appointed on a full-time basis. T 2. he Chairperson of the Commission is to be a Judge of the Land and Environment T Court, with the appointment of an additional Judge to the Court and the immediate secondment of that Judge to the position of Chairperson of the Planning Commission. 3. The Land and Environment Court Act 1979 is to incorporate a provision that will permit any Judge of the Court to be able to act as the Chairperson of the Commission. Such a provision will provide a defined pool of persons who would be able to act as Chairperson, in the event that the permanently assigned Chairperson took leave and it was desirable to make a replacement during that period of absence. 4. he Judge selected to be appointed and seconded to the Planning Commission must T also have the necessary skills and attributes to perform the role of a Judge of the Court, as well as those necessary to fulfil the role at the Planning Commission. 5. esponsibility for selection of the Chairperson of the Planning Commission is to R lie with the Attorney General with the concurrence of the Minister for Planning and Infrastructure. 6. The Chairperson of the Planning Commission is to exercise the following functions: preside over determination processes for complex and/or controversial projects determine the composition of Panels to hear and determine matters over which the Chairperson does not preside allocate minor matters to single members of the Commission for determination, including modification matters that can be dealt with on the papers run the selection process for other members of the Commission run induction training for new members of the Commission establish a continuing education programme for members of the Commission ensure that the Commissions processes are managed to meet performance criteria established (and published) for the efficient discharge of the Commissions role undertake annual performance reviews for other members of the Commission be responsible for preparation of the Commissions annual report manage the resources of the Commission in an efficient and cost-effective fashion.
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7. All of the costs of the Chairperson of the Planning Commission (including of any Judge acting during any absence of the Chairperson) are to be met from its budget and reimbursed to the Department of Attorney General and Justice by the Department of Planning and Infrastructure. 8. he process for selecting Commissioners of the Planning Commission, whether T full-time or part-time, is to be by public advertisement and recommendation to the Minister by a selection panel comprising the following: the Chairperson of the Commission the Director-General of the Department of Planning and Infrastructure an independent person nominated by the Chairperson (with the concurrence of the Minister). 9. ven if an existing Commissioner seeks reappointment, the position should usually E be subject to a contestable advertising process. However, if the Chairperson recommends that a direct reappointment should be made, then the Minister may agree to this. Full-time Commissioners should hold appointment for seven years and be eligible for a second term only. 10. art-time Commissioners are to be appointed for up to three years with a maximum P period of nine years. 11. he qualifications of Commissioners shall remain as provided for in Schedule 3 of the T present planning legislation. 12. Commissioners (other than the Chairperson) should not be judicial officers. 13. he number of persons able to be appointed as Commissioners is not to be limited. T 14. he power to appoint casual Commissioners, if there is a particular workload issue or T a need for highly specialised expertise, is to be retained. 15. ith the concurrence of the Chief Judge and of the Chairperson, a Commissioner W of the Land and Environment Court is to be able to be appointed to chair a panel or to sit on a panel of the Planning Commission (if it were to be chaired by the Chairperson of the Commission). 16. f a Commissioner of the Court were to take part in a Planning Commission I determination process, the costs of the Commissioners participation is to come from the budget of the Planning Commission. 17. he Chairperson, any acting Chairperson or any seconded Commissioner of the T Court is not to perform role of investigating, reviewing and/or advising the Minister on any matter that the Minister might have referred to the Planning Commission. 18. ll matters to be dealt with by the Planning Commission are to have a proper A public hearing. 19. earings are not to be held in courtrooms and venues should be arranged in as H informal a fashion as is possible, consistent with the scope of the likely participation in and public attendance at the hearing. 20. atters that are to be considered by the Commission are to be dealt with by a panel M that is selected by the Chairperson of the Commission.
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21. rior to any public hearing of the Commission where there is likely to be significant P public participation or involve technically complex material, there is to be a public planning discussion well prior to the date of the public hearings. 22. he public hearing process for the Commission is to operate according to published T guidelines that do not impose mandatory restrictions or time limits on those participating but control of the hearing is to lie with the panel conducting it. 23. he Planning Commission Act is to provide that those taking part in a public hearing T can only be represented by an external lawyer or paid agent with the permission of the panel hearing the matter if, and only if, the panel is satisfied that there is some public interest reason why this should be permitted. 24. ompanies are to be able to be represented by directors or employees of the C company; the Department by its employees; councils by councillors or council officers and individuals able to speak on their own behalf. 25. ssociations and community groups are to be able to appoint one of their members A to speak on their behalf. 26. he Planning Commissions processes must remain distinctly different from those T of a Court: he process is to be inquisitorial rather than adversarial. T There is to be no cross-examination processes (whether by lawyers or agents if permitted or by any other participants) of those presenting information during hearings. The Commission panel members are to undertake the questioning of those participating. he rules of evidence are not to apply. T Those participating are not to be sworn in. Transcripts are not automatically to be taken of the proceedings although, with permission of the panel, recording may be allowed if there were some special circumstance demonstrated why this might be warranted if recording were to be permitted, the costs of doing so should be met by the person or entity requesting permission for this to occur. 27. he Commission is to give reasons for all its decisions explaining why the decision T has been made. The decisions are to be made public and, if not given at the end of the Commission hearing, are to be notified to all those who participated in the hearing and published on the Commissions website. 28. ll concurrence functions, no matter what the legislative provision that makes the A approval necessary, are to be vested in the Commission when making a decision about a development proposal.
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29. Appeals on questions of law are to be on the same basis as that which arises in the Land and Environment Court: against decisions made by a panel of the Planning Commission presided over by the Chairperson should lie to the Court of Appeal (this being the position that applies when a merit appeal determination is made by a Judge of the Land and Environment Court). against decisions made by any other panel of the Planning Commission should lie to a Judge of the Land and Environment Court (this being the position that applies for decisions made by Commissioners of the Court) and then to the Court of Appeal. 30. he Commission is to prepare and publish a plain English step-by-step guide to T its processes from how a matter comes into its remit to how a decision is made, publicised and its effect. 31. ll secretariat support is to continue to be provided by the Department of A Planning and Infrastructure, but be independent of the Department and remain in a separate office. 32. he head of the Commissions secretariat is to be responsible to the Chairperson T of the Planning Commission for hearing process matters and to the relevant senior officer of the Department for administrative and personnel matters. 33. he Minister responsible for the Sustainable Planning Act is to be the Minister T responsible for the Planning Commission Act. 34. eneral administrative support for accounting, payroll and similar functions are to G continue to be provided by the Department. 35. he Government consider the early enactment and coming into effect of the T Planning Commission Act to enable the start of reforms through the Planning Commission process in determining whether or not to approve major development proposals.
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Recommendations
36. he Minister is to continue to be responsible for the formal making of Local Land-Use T Plans (as discussed in Volume 1). However, there will be a less interventionist role for the Minister (or the Ministers delegates) in the preparation of amendments to such local plans, including re-zonings. 37. he Minister is to retain the power to refer projects for State level assessment and T determination. The merits of a decision to remove a project from a council will not be subject to appeal. 38. ith the exception of those projects that were declared by the Minister to be W State significant infrastructure, the Minister is not to make any decisions about whether any project should be approved. Decision making at a State level would be undertaken by the Planning Commission.
22 Indeed, this particular one appears to never to have been used. 23 28 September 2011 by the commencement of the Environmental Planning and Assessment Amendment (Part 3A Repeal) Act 2011
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39. f there were public objections during the exhibition stage of a State significant I infrastructure project, the conditions proposed by the Minister for project approval are automatically to be referred to the Planning Commission. The Commission is to determine what changes, if any, are to be made to those conditions. The Commission is not to be permitted to consider whether the project should be approved, or to impose such onerous changes to the conditions of approval so as to constitute constructive refusal. 40. he Ministers ability to intervene, generally, in the planning powers of a council is to T remain. 41. he Ministers present powers to propose appointments to the Planning Commission T and the Ministers role to nominate chairs and state members of Joint Regional Planning Panels is to remain. 42. he Minister is to retain the power to give councils directions with respect T to Development Control Plans and the power to make, amend or revoke a Development Control Plan if the council does not implement the Ministers direction24. 43. he Ministers general legislative and regulation making functions are otherwise to T remain unchanged.
24 lthough we understand that this power is invoked rarely, it was invoked in 2010 by Hon. Tony Kelly MLC, the then A Minister for Planning, concerning the City of Sydneys Late-Night Trading Development Control Plan. We are of the view that this power should be retained and incorporated in the Sustainable Planning Act. 25 See Volume 1 at page 55
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the first was that the Department is metro-centric. This criticism arose on a regular basis during regional community consultation forums and in regionally based submissions. the second, broader complaint, was that the Department focuses too much on micro-management of detailed planning processes and, by extension, interferes in council autonomy. Other significant functions of the Department, including assessment processes for major projects, were only subject to limited criticisms. These related to information availability and openness an area where improvements can be achieved with little difficulty. Overall, there was scant criticism of the professionalism or competence of Departmental staff. It is clear to us that the concern with micro-management is genuinely and honestly held on a widespread basis. However, this concern should be resolved to a considerable extent by shifting the Departments focus to strategic planning26.
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44. he Department is to establish a programme for staffing exchanges with larger T regional city councils. 45. he Department is to second staff to smaller rural councils to assist in strategic T planning and for capacity building. 46. he Department is to establish a new sub-regional office in Wagga Wagga. T 47. he Department is to establish a small-scale trainee planner cadetship scheme with T a cycle of trainee placements with regional and rural councils. 48. he Department is to review the timing, location and costs of meetings T between Departmental regional staff and staff of regional and rural councils. This examination is to focus on the necessity for and affordability of such meetings and the use of alternative options to eliminate travel that can arise from technology such as web cameras.
27 See http://www.planning.nsw.gov.au/Development/Compliance/tabid/502/language/en-AU/Default.aspx 28 e understand that this compliance function was to have been funded by contributions from the mining industry W in this region but that this has not eventuated and these staff are funded from the Departments budget.
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Recommendation
49. he Sustainable Planning Act is to include a provision permitting the imposition T of charges on projects approved by the Minister and/or the Planning Assessment Commission and/or the Planning Commission for the purposes of funding Departmental compliance activities directed at those classes of project.
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Financial Matters
Recommendation
50. he Sustainable Planning Act is to include provisions for the three methods for T deriving local infrastructure contributions currently provided for in the present planning legislation.
29 Environmental Planning & Assessment Act 1979, Part 4, Division 6, Subdivision 2 30 Environmental Planning & Assessment Act 1979, Part 4, Division 6, Subdivision 3 31 Environmental Planning & Assessment Act 1979, section 94 32 Environmental Planning & Assessment Act 1979, section 94A 33 Environmental Planning & Assessment Act 1979, Part 4, Division 6, Subdivision 4 34 Environmental Planning and Assessment Amendment Act 2008 35 The uncommenced Environmental Planning and Assessment Amendment Act 2008, Schedule 1, Part 3 36 ndependent Commission Against Corruption, Anti-corruption Safeguards and the NSW Planning System (February I 2012) at page 6 (Recommendation 4). See http://www.icac.nsw.gov.au/media-centre/media-releases/article/4023
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Recommendations
51. he provisions contained in the uncommenced Schedule 1 Part 3 to the present T planning legislation relating to Planning Agreements are to be incorporated in the Sustainable Planning Act. 52. ny assessing officer considering whether to recommend acceptance of the terms of A a voluntary planning agreement, or any decision making body determining whether or not to enter into such an agreement, is to be required to consider any submissions received during the notice period of the proposed agreement.
37 See Volume 1, Part C, Chapter 5 at page 51 and further discussion later in this Part 38 ndependent Pricing and Regulatory Tribunal, NSW Planning System Review IPART Submission on Issues Paper I (February 2012) at 19. See http://planningreview.nsw.gov.au/LinkClick.aspx?fileticket=lA08WgGSrpE%3d&tabid=1 19&mid=569
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The Tribunal undertook a detailed analysis of three such contribution plans to provide a sufficient platform for their 2011 review. We accept the Tribunals view that it is not appropriate for it to analyse, on an ongoing basis, whether or not it is reasonable for the plans to incorporate individual items. However, we are satisfied that some supervision is required. The adoption of a new, broader basis of spreading funding of the local infrastructure shortfall across the community39 means that there will need to be a degree of State supervision of the content of these plans. The process that we propose will require councils to submit draft Local Infrastructure Plans to the Director-General of the Department of Planning and Infrastructure for review. We do not expect that the Department will undertake a detailed review of each plan, but will undertake a sampled audit for reasonableness. If the DirectorGeneral considers that any plan should be modified, the council whose plan it is may request the proposed modification be referred to the Planning Commission for determination.
Recommendations
53. ouncils are to submit draft Local Infrastructure Plans (or amendments to them) to C the Director-General of the Department of Planning and Infrastructure for review. 54. he Director-General may modify any such plan. T 55. f the Director-General modifies a plan, the council may request the proposed I modification be referred to the Planning Commission for determination. 56. Planning Commission determination on a Local Infrastructure Plan is to be treated A as would an application for a project determination.
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Further, councils should be required to publish the following as part of their annual reporting: a simplified analysis of such monies collected and expended infrastructure provided anticipated timetabling for future infrastructure to be funded from these infrastructure charges. The Tribunals overall consideration will also need to consider the processes by which caps are to be reviewed. This would be part of what should be a regular review of the basis for and amount of the broader social charge to be levied to meet the cost of the infrastructure shortfall.
Recommendations
57. reference is to be given to the Independent Pricing and Regulatory Tribunal A to determine how to accelerate the expenditure of accumulated funds raised by councils from local infrastructure contributions. 58. ouncils are required to publish the following as part of their annual reporting: C a simplified analysis of such monies collected and expended infrastructure provided anticipated timetabling for future infrastructure to be funded from these infrastructure charges.
Recommendation
59. he right of appeal to the Land and Environment Court in its Class 1 jurisdiction T against the reasonableness of conditions imposing a contribution for local community infrastructure is to be retained.
Fitting a Local Infrastructure Plan into the unitary planning document framework
It is necessary to consider where a councils Local Infrastructure Plan should be fitted within the three elements of the unitary planning document that we have recommended to establish the coherent single planning information base for each council area.
40 Rose Consulting Group v Baulkham Hills Shire Council [2003] NSWCA 266
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We do not propose that all Local Infrastructure Plans go through a statutory adoption process, but rather that they are subject to the auditing process discussed above. For this reason, it is not appropriate that a Local Infrastructure Plan form part of the Local Land-Use Plan. However, we have recommended in Volume 141 that there be a standard template layout for Development Control Plans and that this standard template layout should incorporate a chapter or division to encompass the provisions of a Local Infrastructure Plan (that would also permit adoption of a regime for fixed development consent levies pursuant to section 94A of the present planning legislation, if required). As a consequence, not only will the Local Infrastructure Plan form part of the unitary, comprehensive planning information package but it will also be in a common format to assist in public access to information. Therefore, the transition to Local Infrastructure Plans will occur in tandem with the uptake of the standard template for Development Control Plans.
Recommendations
60. ll local infrastructure contributions plans are to be consolidated into a single Local A Infrastructure Plan and incorporated into the Development Control Plan in the unitary planning document for a council. 61. his consolidation is to take place when the council translates its Development T Control Plan to the standard template for such plans.
41 At Recommendation 27 42 The levy is currently 0.064% of the estimated capital investment value of the project
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Environmental Plans and strategic plans, such as the Metropolitan Plan for Sydney 203643 and regional strategies. The balance of the Departments 2010/11 funding came from the Consolidated Fund ($84.3M) and a range of other, lesser sources ($21.5M). Finally, the Department received $4.5M in developer contributions to be remitted to bodies such as Roads and Maritime Services for works to be undertaken. These funds are held on a constructive trust for the relevant entity and are remitted as the works are carried out. The Departments reliance on the revenue stream from the Planning Reform Fund has increased over the years as a result of increases in Departmental responsibilities. There are several risks that arise from this arrangement: uncertainty in budget predictability the necessity for increasing the non-Consolidated Fund revenue in order to provide acceptable service levels from the Department (necessary to facilitate the government policy of promoting acceptable economic growth) the potential public perception of conflict of interest that the Department needs to promote major project development proposals for assessment purely to ensure Departmental viability. Such a perception would foster public cynicism about the independence and integrity of major project assessments, if levels of application fee driven revenue impact on employment security for staff of the Department. It is not appropriate for us to be suggesting what should be suitable funding and staffing levels for the Department, but we consider it is appropriate to comment on the way the Departments budget is derived. This is because budgetary processes form part of the framework that informs and influences public perceptions of the integrity of the planning system and thus do fall within our terms of reference. To provide additional funding to meet the cost of these reforms, we proposed, in Volume 1, that the Planning Reform Levy be increased from 0.064% to 0.10% of the capital investment value of projects and that the exemption of projects with a capital investment value of less than $50,000 be removed44. This would result in the income to the Fund increasing from $22.4M to $35.3M (drawn from 2010/2011 figures). Further, removal of the exemption would have raised an additional $200,000 in 2010/11. We consider it appropriate that the entire Departmental budget be brought within the conventional budget bidding and setting process. Such a change would necessarily be accompanied by a requirement that development application assessment fees for major projects and contributions to the Planning Reform Fund should become part of the general revenue of the State rather than being allocated, specifically, to support the Departments operations. Any necessary adjustment, up or down, in the Departments budget would then become part of the annual budgetary process for allocations from the Consolidated Fund. Departmental costs and a program of grants to councils for planning reform implementation, including electronic planning, should be dealt with as part of the budget cycle through Consolidated Fund allocation.
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Recommendations
62. evelopment application assessment fees for major projects and contributions to D the Planning Reform Fund are to be remitted to the State Treasury. 63. he budget of the Department of Planning and Infrastructure is to be brought within T the conventional budget bidding and setting process of the Consolidated Fund. 64. he monies raised as Planning Reform Fund levies are to be applied to three purposes: T meeting the appropriate portion of the budget of the Department of Planning and Infrastructure (but excluding assessment costs for major project assessments). providing a fund from which the Department of Planning and Infrastructure can make grants to councils to roll out comprehensive use of information technology to support e-planning and data accuracy and future collection. meeting the costs of the Planning Commission.
Recommendations
65. n consultation with local government, the Department of Planning and I Infrastructure is to establish a framework for assessing council grant applications for grants given to councils to improve their use of information technology, to support e-planning, electronic data accuracy and future collection. 66. he Departments budget is to include an allocation (drawn from monies paid into T the Planning Reform Fund) for the making of such grants.
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Recommendation
67. ufficient budget allocation is to be made for the Planning Commission to enable it S to fulfil the expanded role intended for it.
Legislative cost shifting Planning Commission & Joint Regional Planning Panels
When the Planning Assessment Commission and Joint Regional Planning Panels were incorporated in the present planning legislation, a provision46 was also inserted in the legislation that made the relevant council responsible for the cost of their activities. However, the then government subsequently decided that the State would meet the costs of the Planning Assessment Commission and of Joint Regional Planning Panels. There have been no Ministerial exemptions47 granted. As a consequence, technically, councils currently owe a debt to the State for the costs of a Panel or the Commission acting as the consent authority for any development proposed for land in that councils area. We have no reason to believe that the present Government proposes to stop meeting these costs. Section 23O of the present planning legislation should not be carried over into the Sustainable Planning Act. The accrued debts should be forgiven by the State. The sole provision in section 23O48 of the present planning legislation that has operated is the requirement that a council meet the costs of running any local Independent Hearing and Assessment Panel appointed by it. A provision requiring councils meeting the costs of Independent Hearing and Assessment Panels, Independent Hearing and Determination Panels or Architectural, Urban Design and/or Heritage Assessment Panels should be in the Sustainable Planning Act.
46 Environmental Planning and Assessment Act 1979, section 23O 47 Environmental Planning and Assessment Act 1979, section 23O(5) 48 Environmental Planning and Assessment Act 1979, section 23O(3)
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Recommendations
68. ost recovery from councils is not to be included in the Sustainable Planning Act C when either the Planning Commission or Joint Regional Planning Panels act as consent authorities for development on land in a councils area. 69. he State is to forgive debts that have accrued (and will continue to accrue) under T section 23O of the present planning legislation until its repeal is effected. 70. he present provision requiring a council to meet the cost of any Independent T Hearing Assessment Panel that it might establish is to be retained. 71. similar provision is to be incorporated for any Independent Hearing and A Determination Panel or any Architectural, Design and/or Heritage Assessment Panel.
49 Currently set by the Environmental Planning and Assessment Regulation 2000, Part 15 50 nvironmental Planning and Assessment Further Amendment Regulation 2010. For details on the official notification E see Government Gazette of the State of New South Wales (Friday 31 December 2010) http://www.nsw.gov.au/sites/ default/files/Government_Gazette_31_December.pdf
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Recommendations
72. reference is to be given to the Independent Pricing and Regulatory Tribunal to A investigate whether development application fee scales for councils should be increased to ensure that they reflect a proper user pays basis for the assessment and determination processes for development applications. 73. he process for setting council development application fee scales is to provide that T these fees are adjusted, automatically on an annual basis, by the same percentage as the base annual increase percentage for ordinary council rate revenue.
Recommendation
72. niversity developments for student accommodation, teaching and research U facilities are not to be subject to development contributions except for drainage and traffic management works (at the development sites entrance).
51 epartment of Infrastructure, Planning & Natural Resources, Development Contributions Practice Notes July 2005 D (2005). See http://www.planning.nsw.gov.au/planningsystem/pdf/all_contribution_pns.pdf
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Legislative structure
The Minister responsible for Land and Property Information should be responsible for the Spatial Information Act. The Spatial Information Act needs to cover the following defined classes of electronic spatial information held by New South Wales government agencies: Class 1: land-use data (including the cadastre55, planning spatial datasets and features of interest) Class 2: social data (population profiles, demographic data, data about the type of government services available) Class 3: economic data (land and property valuations, employment levels, planning activity and building data, licensing and registration data) Class 4: infrastructure data (water, gas, electricity, telecommunications services, transport). Class 5: political data (State and Federal electorates, local government areas) Class 6: environmental data (climate, bushfire and flood, threatened species, vegetation communities, national and State park boundaries, river and stream classifications and heritage).
52 Government agencies means councils, state owned corporations and other bodies falling within the definition of agency under the Government Information (Public Access) Act 2009 53 See Volume 1, Part G 54 See Glossary 55 See Glossary
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As discussed in Volume 156, a duty to cooperate shall be included in the Spatial Information Act to ensure that digital data held or created by councils, State owned corporations and agencies of the State (to be defined by regulation) is consistent, particularly with Strategic Plans. These datasets will be linked to a publicly available geoportal. Basic access will be provided free-of-charge, with more comprehensive access via subscription or on a user pays basis (as determined by the Minister). Information may be provided in a format that prevents re-use for commercial purposes. Further, datasets that contain sensitive information (like the location of items of Aboriginal cultural heritage and threatened species) will only be accessible via subscription and/or licence agreement. Non-government agencies (including the Commonwealth and utilities) that hold spatial datasets for the classes covered by the Spatial Information Act and that wish to link them to the geoportal will be permitted to do so with the Ministers approval. Agencies will be required to make spatial datasets and services available to other agencies for public functions covered by a disclaimer, licence agreement or memorandum of understanding, if necessary. The Spatial Information Act will identify which Government agency will be the custodian of a particular spatial dataset and their duties not require the creation of new datasets. This will include determining the custodianship arrangements for the electronic register(s)57 of development consents. Government agencies will, however, be required to create metadata58 for spatial datasets and spatial data services59 within their custodianship. To ensure government-held spatial datasets can be searched and combined with other datasets, the Minister will have the capacity to establish metadata requirements for spatial datasets and spatial data services and to prescribe requirements for interoperability and harmonisation. Implications for government liability in negligence associated with making governmentheld spatial data publicly available and any copyright implications of making spatial data publicly available will also be considered during the preparation of the Bill. The Bill will also be drafted to ensure it complements the requirements of the Government Information (Public Access) Act 2009.
56 See Volume 1, Part C, Chapter 4 at Recommendation 9 57 See this volume, Part 6 Register of consents 58 See Glossary 59 See Glossary
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Recommendations
75. he Spatial Information Act be enacted covering certain classes of spatial T information held in electronic form by government agencies that relate to New South Wales (including the coastal waters of the State). 76. rafting of the Spatial Information Act is to be responsibility of the Department of D Finance and Services assisted by the Department of Planning and Infrastructure.
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60 Independent Commission Against Corruption, Anti-corruption Safeguards and the NSW Planning System (February 2012) at page 6 (Recommendation 4). See http://www.icac.nsw.gov.au/media-centre/media-releases/article/4023
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ICAC Recommendation 3 That the NSW Government continues to ensure that adequate oversight safeguards are in place for the assessment and determination of development applications that propose prohibited uses. NSW Planning System Review Response Prohibited uses in the land-use table of a Local Land-Use Plan will not be able to be approved without a rezoning application with the exception of industrial zones. The process for spot rezoning applications will refer those applications to the Planning Commission for determination. See Volume 1, Part C, Chapter 7 Recommendation 41 rohibited uses in industrial zones are to be assessed on their merits with a positive P requirement for the proponent to demonstrate a positive public interest in permitting such development. Any approval pursuant to this limited exception is to require the concurrence of the Director-General of the Department of Planning and Infrastructure. See Volume 1, Part C, Chapter 5 Recommendation 21 The distinction between a prohibition and a development control will be removed and as a result the only prohibitions will exist in the land-use table in Local Land-Use Plans. See Volume 1, Part C, Chapter 5 Recommendation 22 The Minister for Planning and Infrastructure will not make any merit decisions regarding individual development proposals, except for State significant infrastructure. The Minister may decide that a matter should be determined by the Planning Commission but this is a process not a merit matter. See Volume 1, Part C, Chapter 10 ICAC Recommendation 4 That the NSW Government introduces changes to voluntary planning agreements that are consistent with those proposed in the yet-to-commence provisions set out in Schedule 3 of the Environmental Planning and Assessment Amendment Act 2008. NSW Planning System Review Response The Sustainable Planning Act will incorporate the provisions in the yet-to-be commenced Schedule 3 Environmental Planning and Assessment Amendment Act 2008, relating to voluntary planning agreements. See Volume 2, Part 3 ICAC Recommendation 5 That the NSW Government introduces a system of continuing professional development for government planning practitioners. NSW Planning System Review Response A scheme for continuing professional development is proposed for all persons of any professional discipline carrying out planning functions and employed by councils, the Department of Planning and Infrastructure and other State Government departments and instrumentalities.
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A working party will be established, led by the Department of Planning and Infrastructure, with members from local government, the Planning Institute of Australia (New South Wales), the development industry, conservation groups and tertiary education providers, to design a framework for and the minimum annual requirement to undertake continuing professional development education for planners. See Volume 1, Part I Recommendations 143 147 ICAC Recommendation 6 That the NSW Government ensures that the new planning legislation clearly articulates its objectives and provides guidance on the priority (if any) to be given to competing objectives. NSW Planning System Review Response The Sustainable Planning Act will include an overarching object as well as process objectives and incorporate objects for strategic planning as well as for the making for Local Land-Use plans. See Volume 1, Part C, Chapter 3 Recommendation 6 We do not propose any priorities for the range of objects for strategic planning or for the making for Local Land-Use plans. See Volume 1, Part C, Chapter 4 Recommendation 8 ICAC Recommendation 7 That the NSW Government ensures that its system for assessing and approving developments of state significance provides adequate opportunities for competing public interests to be considered. NSW Planning System Review Response All development proposals for State significant development and Public benefit infrastructure will be determined by the Planning Commission established under the Planning Commission Act to mandate procedures ensuring that there are adequate opportunities for competing interests to be considered and for open processes and giving reasons for decisions. See Volume 1, Part F The Planning Commission will exercise determinative functions with respect to the following range of matters: tate significant development61 S State significant infrastructure (but limited to consideration of conditions of consent for projects determined by the Minister) Public benefit infrastructure projects referred by the Minister to the Commission for determination Any other development proposals referred by the Minister to the Commission for determination. See Volume 1, Part F
61 In this context, we note that we have earlier proposed that residential development proposals, whether greenfield or urban infill, that have a projected yield of 500 or more dwellings should be classified as State significant development and thus fall within the determined function of the Planning Commission.
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ICAC Recommendation 8 That the NSW Minister for Planning and Infrastructure considers adopting a protocol to deal with situations where the Minister disagrees with a departmental recommendation concerning a planning matter. The protocol should ensure that any decision by the Minister to adopt an alternative approach, and the reasons for such a decision, are clearly documented and made publicly available. NSW Planning System Review Response The reformed planning system will essentially remove all decision making about development proposals from the Minister for Planning and Infrastructure and transfers it to an independent, open and participative process the Planning Commission. The exception is State significant infrastructure, but the conditions for any such project determined by the Minister may have their appropriateness considered by the Planning Commission. See Volume 1, Part F As a consequence, Ministerial disagreement with the Department of Planning and Infrastructure will be limited to policy matters or determinations about State significant infrastructure. The question of whether a protocol should be adopted (as suggested), as part of these more limited decision making roles of the Minister, is a matter for political consideration rather than our recommendation. However, we consider that the reformed planning system we have proposed largely satisfactorily resolves the Commissions concerns. See Volume 1, Part D and Volume 2, Part 2 ICAC Recommendation 9 That the NSW Department of Planning and Infrastructure produces and maintains a community guide dealing with development processes. NSW Planning System Review Response The Department of Planning and Infrastructure, in conjunction with the Local Government and Shires Association, prepare a plain English guide to the classification, assessment and determination processes for development proposals under the Sustainable Planning Act. Preparation of the guide is to be under the supervision of the Planning Advisory Board. See Volume 1, Part H Recommendation 141 Plain English explanatory materials, such as a best practice guide to plan making and a guide for councillors about their development decision making role, will be prepared. See Volume 2, Part 6 Recommendation 89 ICAC Recommendation 10 That the NSW Government takes steps to reduce the complexity of the planning system, including rationalising the number of control documents applying to a single parcel of land. NSW Planning System Review Response All information concerning any parcel of land will be consolidated into an electronically accessible, unitary planning document. All State Environmental Planning Policies will be reviewed for relevance and then collapsed into one, well-indexed document (see response to Recommendation 13 below). See Volume 1, Part C, Chapter 5 Recommendation 14
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Electronic access to the widest possible range of planning information particularly as mapped displays via a publicly available geoportal will be available. See Volume 1, Part G and Volume 2, Part 4 ICAC Recommendation 11 That the NSW Government requires community consultation to be undertaken and public submissions to be given due consideration before the release of a major strategic planning document. NSW Planning System Review Response Community consultation for strategic planning will be undertaken in a manner similar to that recently undertaken in the New England North West and the Upper Hunter regions, as part of a Strategic Regional Land Use planning process. We envisage that the initial development of strategic plans be undertaken in modules to build the overall plan. A community and stakeholder consultation process will then follow to develop each module as a building block for the overall plan. This should be followed by seeking responses to the aggregated draft outcomes from the initial process. See Volume 1, Part C, Chapter 4 There will be the maximum use of electronic media to enable the widest and earliest opportunities for public and other stakeholder engagement with the new planning system (including facilitating public engagement in strategic plan development). See Volume 1, Part H ICAC Recommendation 12 That the NSW Government mandates that public submissions are to be considered by a planning authority following the exhibition of a draft voluntary planning agreement. NSW Planning System Review Response In addition to the present legislative requirement that a Planning Agreement be subject to a 28 day notice period, any submissions received during that notice period will be required to be considered by any assessing officer considering whether to recommend acceptance of the terms of the Planning Agreement or any decision making body determining whether or not to enter into such an agreement. See Volume 2, Part 3 Recommendation 52 ICAC Recommendation 13 That the NSW Government requires planning instruments of state significance to be subject to community consultation, except where there are adverse environmental, social or economic impacts and where these adverse impacts outweigh the benefits of community consultation. Where community consultation has not been undertaken, then the specific reasons for not undertaking community consultation should be made publicly available when the planning instrument is made. NSW Planning System Review Response Each currently operable State Environmental Planning Policy is to be reviewed to determine whether it needs to be retained and, if so, whether the policy approach needs revision. We have recommended that, once completed, all remaining State Environmental Planning Policies are collapsed into a single, well-indexed document to be known as the State controls forming part of a unitary planning instrument for each local government area. See Volume 1, Part C, Chapter 5 Recommendation 15
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The introduction of new State controls or amendments to State controls will be subject to a compulsory public consultation process. The only exception to this is for changes to the State controls which are of an administrative or minor nature. See Volume 1, Part C, Chapter 5 he Minister will have the opportunity to refer new State controls or amendments to T State controls to the Planning Advisory Board for comment which may also comment on new State controls or amendments to State controls subject to public consultation. See Volume 1, Part K ICAC Recommendation 14 That the standard community consultation requirements for draft local environmental plans be given statutory backing. NSW Planning System Review Response The processes for making changes to Local Land-Use Plans (other than the development of a new plan or a regular, statutorily required review) should be divided into two separate streams: one for dealing with rezoning proposals, the other dealing with proposed changes (other than minor clerical or drafting corrections). See Volume 2, Part 6 Recommendations 96 and 97 Proposals dealing with the re-zoning of land are able be considered by the Joint Regional Planning Panel or the Planning Commission (depending on scale of the proposed change or the stage of the process being undertaken) which will be a transparent process, including community consultation and a right to be heard. See Volume 1, Part C, Chapter 7 Recommendations 40 and 41 and Volume 2, Part 6 Proposals for non-rezoning changes to Local Land-Use Plans of a substantial nature will be dealt with through a process that incorporates public notification and consultation prior to any adoption of such a change. See Volume 2, Part 6 Recommendation 97 ICAC Recommendation 15 That the NSW Government ensures that planning authorities are required to provide regular information and updates to the public about development applications under assessment, including any significant changes made to an application. NSW Planning System Review Response We have made a series of recommendations for the procedure for consultation for amendments to development applications as follows: For code assessable development, unless it is the opinion of the assessing certifier that the amendments are minor or the assessing certifier is satisfied that the amendments are being made after consultation with the neighbouring owner and/or occupier and agreed to by them, any amendments will only require a copy of the amendments to be provided to the occupants of neighbouring properties (there being no right of objection for code assessable development).
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or merit assessable and impact assessable development, if the amendments F are not minor amendments in the opinion of the assessing officer, the amendments are to be subject to a further notification period or extension of the notification period if the amendments are made during the original notification period. Amendments may only be permitted if the project will remain substantially the same as that for which the application was originally made. For merit assessable development, the additional notification period will be one week whilst for impact assessable development it will be two weeks. If extensions are made to the notification period, a similar extension is to be applied automatically to the mandated period for determination. Any amendments are to be notified on the assessing bodys website together with electronic notification to any persons who have notified the assessing body that they wished to be informed of any amendments. See Volume 2, Part 6 Recommendations 80 86 If a Christmas/New Year holiday period falls within the assessment/determination periods (discussed above), an additional 10 working days is to be added. Similarly, if the Easter holiday period falls within the assessment/determination period, an additional 5 working days is to be added. See Volume 1, Part C, Chapter 9 Recommendation 64 Public communication of processes for proposed developments cannot be left to methods using established media, such as public notices and display in council chambers or public libraries. Even the traditional medium of sending letters is, for many, now an outmoded method of communication. The ability to access emails or Twitter feeds on mobile data devices coupled with the ability to open a link to data almost instantaneously needs to be embraced as a significant and, potentially over time, dominant method of communicating about planning matters. See Volume 1, Part H The Departments website will include an interactive map to facilitate access to information about major projects being assessed by the Department. See Volume 2, Part 12 Recommendation 210
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ICAC Recommendation 15 That the NSW Government considers expanding the categories of development subject to third party merit appeals to include private sector development that: is significant and controversial, represents a significant departure from existing development standards, and is the subject of a voluntary planning agreement. NSW Planning System Review Response We have rejected open standing merit appeal rights for third parties. We are aware that the broad third party merit appeal rights which are available under the Queensland planning system has lead to commercially based litigation between competitors. We are not prepared to open this avenue for costly litigation in NSW. However, we have recommended that a third party merit appeal right should exist for an objector who can demonstrate a direct adverse effect by the granting of a dispensation from an existing development standard. See Volume 1, Part C, Chapter 12 The open standing provisions of section 123 of the present planning legislation will be maintained. See Volume 1, Part C, Chapter 13 Recommendation 120 Public participation and the right to be heard are to be established formally in the Joint Regional Planning Panel and Planning Commission processes to ensure that the concerns of third parties are considered in the determination of development. See Volume 2, Part 1 and Part 6 Joint Regional Planning Panels will be required to give reasons for decisions that disagree with the recommendation of an assessment report. The Planning Commission will be required to give and publish reasons for its decisions. See Volume 2, Part 1 Recommendation 27 and Volume 2, Part 6 Recommendation 135 These measures, in our opinion, provide appropriate protection for the rights of third parties. We consider that going further merely runs the significant risk of costly litigation in the Court without sufficient benefits to counterbalance this.
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Recommendation
77. he best practice guidelines62 for plan making (strategic planning and local land-use T planning) are to include explanations of how alternative community consultation processes might be utilised in plan development.
62 See Best practice guidelines for plan development in this volume at Part 6 63 See Part 6 of this volume 64 See Volume 1, Part C, Chapter 10 at page 97
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Use of different decision-making processes may, over time, improve public confidence in the integrity of development decision-making. However, although we consider that the ability to broaden decision-making should be permitted, if used, it must be subject to review. This should apply both to the decision-making process proposed and the project under consideration. The Sustainable Planning Act should make provision to allow alternative decision-making processes to be proposed by a council. However, the concurrence of the Minister for Planning and Infrastructure should be required, at least until there is a body of practical experience (and positive outcomes) within the new planning system with such alternatives. The council should advise the Minister of what process is proposed to be adopted and the nature of the project. Any such application to the Minister shall include the applicants views on the proposal that this is to occur.
Recommendation
78. he Sustainable Planning Act is to permit a council to adopt an alternative decision T making process, outside the scope of the mandatory range of processes provided for, but only with the concurrence of the Minister for Planning and Infrastructure.
Recommendation
79. he Sustainable Planning Act is to make it clear that any amendments made to a T proposed project during the assessment process cannot alter the proposal in such a major way that it is no longer substantially the same project as that in the original application.
65 See Volume 1, Part C, Chapter 9 at page 82 66 Environmental Planning and Assessment Act 1979, sections 96 and 96AA
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Recommendations
80. mendments to code assessable development are to be permitted prior to A determination of the application. 81. nless, in the opinion of the assessing certifier, the amendments are minor, or U the assessing certifier is satisfied that the amendments are being made after consultation with the owners and occupiers of all neighbouring properties and are agreed to by those owners, any amendments to code assessable applications will require the council to provide a copy of the amendments to the owners of the neighbouring properties whose owners have not agreed to the amendments. 82. or merit and impact assessable development, if the amendments are not minor F in the opinion of the assessing officer, the amendments are to have a further notification period, or extension of the notification period if the amendments are made during the original notification period.
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83. or merit assessable development, the additional notification period is to be 5 F working days, whilst for impact assessable development it is to be 10 working days each time amendments are proposed. 84. f extensions are made to the notification period, a similar extension is to be applied I automatically to the mandated period for determination. 85. ny amendments are to be notified on the assessing bodys website. A 86. or merit and impact assessable development, there is to be electronic notification F to any persons who have notified the assessing body that they wished to be informed of any amendments or who have already lodged a submission.
Recommendation
87. ouncils are to be able to establish specialist local advisory panels to deal solely with C architectural, urban design and/or heritage matters.
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that separate assessment and determination has meant that different (and lesser) standards have been applied to some projects, such as parking spaces for public authority projects being significantly fewer than would have been required had the development been undertaken privately. However, public authorities that currently benefit from these existing provisions strongly support continuing self-assessment and determination for public projects. Indeed, it was suggested to us by one such authority that that body should be given additional powers to act as the assessing and consent authority for private development proposed to be undertaken on land it owned or controlled. We propose that assessment and determination of all permitted development should fall within our four recommended categories68 for development. There is no reason why development proposed to be undertaken by or on behalf of a public authority should be exempt from being categorised in the same fashion as private development. The critical question for such development is to what extent should this development be subject to a self-assessment process? A theoretically pure model might require identical processes to apply to public authority and private development. However, the history and lack of controversy for smaller scale public developments persuades us that, for the most part, it is appropriate to retain a selfassessment process. We propose that all development proposed by a public authority except development within the scope of State significant infrastructure and Public benefit infrastructure is to be assessed by the public authority. Further, developments which fall within State significant infrastructure or Public benefit infrastructure is to be assessed though an independent process within the Department of Planning and Infrastructure.
Recommendation
88. ssessment processes for public authority projects are to be as set out below: A Development Track Exempt Prohibited Code assessment Merit assessment Impact assessment Assessment Body Public authority Not applicable Public authority Public authority Public authority or Department of Planning and Infrastructure
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Training materials are needed in order to explain to councillors what is their proper role in determining development proposals. These materials should be incorporated into induction processes for newly elected councillors, and should be made available to councillors elected at by-elections during the election cycle. The material should not only encompass decisionmaking about development proposals, but should also encompass their broader roles in the development of the planning framework. The question of whether there should be some form of mandatory induction course for elected councillors is far broader than the matters that we need to traverse in this Review Paper. However, the preparation of material we recommend about the reformed planning system would be available for councillor induction if that were to arise from the separate review being undertaken of the Local Government Act 1993.
Recommendation
89. he working group established to create a professional development program T for council and State Government planners is also to consider ways to develop and deliver training materials for elected councillors on planning policy and development decision making.
69 See Volume 1, Part I at Recommendation 143 70 Government Information (Public Access) Act 2009, section 8 or Part 3
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Recommendations
90. ny assessment report for merit assessable or impact assessable development A proposals is to be made available on the website of the assessing body, at least one week prior to any determination being made or any hearing planning meeting of the Planning Commission. 91. f the submitters have registered an e-mail address, the assessing authority is I to e-mail advising of the availability of the assessment report on the assessing authoritys website.
Recommendations
92. he Department of Planning and Infrastructure is to convene a working group T drawn from property industry interests; local government; the relevant professions (planning, architecture, urban design, heritage and law); and conservation and community groups [reflecting the composition of the Planning Advisory Board] to develop draft guidelines on best practice options for community engagement in the plan development process. 93. he guidelines are to be considered by the Planning Advisory Board prior to T adoption by the Minister for Planning and Infrastructure.
71 See Volume 1, Prologue at page 7 72 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337; 176 ALR 644; 75 ALJR 277
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being the certifier for subsequent site inspections. Such a prohibition should extend to certifier partnerships or incorporated entities so that approval and inspection processes are separated. This prohibition is not necessary when certification and inspection activities are undertaken by a council as there no perception of any pecuniary interest arising from the two roles. However, for equally obvious perception reasons, we do not consider it appropriate that a council officer who grants consent to a code assessable development should also act as the officer undertaking inspections if the council is also appointed as the Principal Certifying Authority for the development. We appreciate that it is possible that in some rural areas this may cause difficulties, given the comparatively small staffing levels in some councils. As a consequence, we also consider it appropriate that, in such circumstances, the Minister should be given authority to grant an exemption from this requirement to such a council.
Recommendations
94. rivate certifiers (including partners in or employees of the same entity) and council P staff are not to be permitted to inspect developments that they have approved. 95. ouncils are to be able to seek an exemption, from the Minister for Planning and C Infrastructure, to this prohibition.
73 See Volume 1, Part C, Chapter 7 74 Environmental Planning and Assessment Act 1979, section 73A
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Recommendations
96. he processes for making changes to Local Land-Use Plans (other than the T development of a new plan or a regular, statutorily required review) are to be divided into separate streams, one to deal with rezoning and one to deal with other proposed changes. 97. roposals for non-rezoning changes to Local Land-Use Plans (other than minor P clerical or drafting correcting changes) are to incorporate public notification and consultation prior to adoption of such a change.
Recommendation
98. evelopment consents are to be required to have their conditions divided into: D those that define and authorise a permitted use of the approved development those that define the conditions that regulate and control the development that is necessary to allow the permitted use to operate those conditions that have an ongoing basis in regulating how the permitted use operates into the future.
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Recommendation
99. he Department of Planning and Infrastructure is to convene a working group with T representatives from local government, the development industry and community and environmental networks to identify development types where template or model conditions of consent would be desirable (including development types where concurrence authority delays are common) and to develop template or model conditions of consent for those development types.
76 or example, as appears to be envisaged by the Draft Sydney Development Control Plan 2010 at 2.16 Late Night F Trading Management
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Recommendation
100. he Sustainable Planning Act is to make it clear that trial periods for development T proposals are to be permitted but that a maximum of three trial periods encompassing a total maximum period of five years is to apply, before a final determination (to give permanent approval or to refuse approval) is made on the proposal.
Recommendation
101. onditions requiring security bonds are to be permitted by the Sustainable C Planning Act for merit and impact assessable development for matters broader than damage to public infrastructure, but only to the extent where it can be demonstrated that there was a real and substantial risk of non-compliance with the conditions of a development consent and that such non-compliance would result in a public authority or a neighbouring landholder having to pay rectification/ remediation costs to remedy the consequences of the breach.
77 or example, the decision of Lloyd J in Charalambous v Ku-ring-gai Council (2007) 155 LGERA 352; [2007] NSWLEC F 510 where he confirmed that the scope of section 80 limited the power of a consent authority to impose financial sureties and did not permit financial sureties to be imposed for other purposes, such as landscape maintenance as required by the conditions of a development consent.
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Recommendation
102. here is to be a specific statutory provision that permits a consent authority to T impose a condition of development consent founded on the public interest, even if there is no immediate nexus or connection with the proposed development but where the nature of the condition can be seen as reasonable and as a sufficiently geographically proximate response to the proposed development.
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In Volume 179, we set out the nine matters about definitions that we felt required consideration. Two80 major ones were dealt with in Volume 1. The remainder were deferred to this Volume. They are: 1. Should there be a definition of the public interest? 2. Should there be a definition of sustainable development? 3. oes the definition of development in the present planning legislation need D to be revised? 4. hould there be a definition of affordable housing and whether student housing S should be included 5. he need to define each of the new classifications into which a development T proposal might fall 6. he bringing together of all definitions into a dictionary T 7. The need for cross-referencing of definitions contained in other pieces of legislation.
Sustainable development
There has been a broad but not universal consensus that a reformed planning system should incorporate proper regard for the principles of sustainable development. In this context, there has also been significant support for incorporating a definition of sustainable
79 Volume 1, Part C, Chapter 14 80 Should there be definitions of minor and of physical commencement 81 Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2003] NSWCA 289; (2003) 129 LGERA 195 per Mason P at para 81
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development in the reforming legislation. While we have recommended82 that the single overarching object for the Sustainable Planning Act should reflect the desirability of triple bottom line83 outcomes, nonetheless the concept of sustainable development is one to which it is appropriate to have regard in the strategic planning, local land-use planning and development assessment processes. As a consequence, we are satisfied that the term should be defined in the Sustainable Planning Act. It is desirable that a consistent approach be taken to the definition of sustainable development. As a result, the definition adopted in the present planning legislation should be retained, as the same definition is used in the Protection of the Environment Operations Act 1995. We would also observe, however, that if there were to be any revision of that definition, a similar revision should be made to the definition contained in the Sustainable Planning Act.
Development
The present planning legislation contains a definition of development84. This definition has been broadly supported in the submissions and we see no reason to alter it.
Affordable housing
The planning system needs to recognise properly the desirability of providing affordable housing as it is an important part of the social aspect of a triple bottom line outcome. This was reflected in a number of submissions in both the consultation process and to the Issues Paper. Consequently, affordable housing must be defined to reflect the context in which it is provided and reflect a variety of housing types so that the wide spectrum of needs for such accommodation can also be considered.
Student accommodation
A specific question was raised by the Vice Chancellors Committee85 as to whether or not campus serving and/or campus-based student accommodation for tertiary education institutions should be regarded as affordable housing. This submission suggested that it be acknowledged as such because of the important contribution that it makes to the affordability of education. It also suggested that the potential impacts of such housing on matters of development assessment concerns (such as parking demand) was likely to be comparable to that of conventional affordable housing, because of the restricted economic circumstances of those residing in such accommodation. We are also persuaded that, because of the significant value of the human capital for our society that is produced by the education process and the significant economic benefits to the State economy of inbound overseas students, such accommodation should be defined as affordable housing. In addition, recognising student accommodation as affordable housing may result in less demand by students for accommodation in complexes that are unapproved multiple occupancies.
82 See Volume 1, Part C, Chapter 3 83 Triple bottom line outcomes are those which are ecologically, economically and socially sustainable 84 Environmental Planning and Assessment Act 1979, section 4 85 ew South Wales Vice-Chancellors Committee, Submission in Response to the Issues Paper of the NSW Planning N System Review (29 February 2012). See http://planningreview.nsw.gov.au/LinkClick.aspx?fileticket=6947tSfH2As% 3d&tabid=119&mid=569
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Recommendations
103. ll definitions in the Sustainable Planning Act are to be located in a dictionary at the A end of that Act and not located within the body of the legislation. 104. definition of affordable housing is to be included in the dictionary in the A Sustainable Planning Act. 105. tudent accommodation is to be included in the definition of affordable housing. S 106. ll definitions that are presently derived by referencing the terms of a definition A contained in another statute are to be spelt out in full in the dictionary to the Sustainable Planning Act.
86 See Volume 1, Part C, Chapter 6 87 Environmental Planning and Assessment Act 1979, section 4
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107. definition of sustainable development is to be incorporated in the same terms as A the Protection of Environment Operations Act 1995. 108. xisting definitions contained in the present planning legislation are to be brought E across, to the extent necessary, but their language is to be reviewed to see if any revision of any term is required. 109. efinitions in the Sustainable Planning Act are to reflect the categories of D development set out in the modified Development Assessment Forum model described in Volume 1, Part C Chapter 6.
88 See Recommendations below 89 Environmental Planning and Assessment Regulation 2000, clause 136E
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Recommendations
110. lause 136E of the Environmental Planning and Assessment Regulation 2000 is to be C carried over into the Sustainable Planning Act for code assessable development and a notice be included in code assessable approvals, prepared by the Department of Infrastructure and Planning in consultation with relevant authorities, that informs about bonded and friable asbestos, how to have suspect material tested and the personal and community health implications from inhalation. 111. emolition of any item being investigated by a council for possible listing as an D item of local heritage is to be excluded from being exempt or code assessable development, if the owner of the item has been given notice of the investigation. 112. here is to be a limit of 28 days after lodgement of an application to demolish T within which a heritage investigation is to be finalised (and the owner of the item to be notified of the outcome) as to whether the council should consider seeking an amendment to the Local Land-Use Plan to list the item as one of local heritage significance. 113. f the investigation process recommends local listing, the application is to be merit I assessable on this basis. 114. f the investigation does not recommend local listing or if the investigation is not I completed and the owner notified of the outcome within the required 28 days, the demolition application shall be deemed to be approved.
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We are satisfied that this strikes an appropriate balance between the desirability of providing public infrastructure on the one hand, and ensuring public confidence in development decision-making on the other.
90 ow this is set is to be determined by consultation between the Department of Planning and Infrastructure and H such public bodies and prescribed in a regulation 91 n this context, public project includes public/private partnerships, BOOT (build, own, operate, transfer projects) I and other models for financing or delivering public infrastructure projects 92 See recommendations concerning Register of consents below
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Recommendation
115. etermination processes for public authority projects are to be as set out below: D
Decision Maker Public authority Not applicable Public authority Public authority or Joint Regional Planning Panel (depending on scale). Joint Regional Planning Panel if a dispensation from a development standard is required. Planning Commission or Joint Regional Planning Panel depending on scale
Impact assessable
Recommendations
116. f a minor non-compliance causes an application to be merit assessable rather I than code assessable and the assessing officer considers that a minor amendment would render the application totally code assessable, the assessing officer is to contact the proponent and suggest that the proponent make the minor amendment to the proposal. 117. f such an amendment is made by the proponent, the application will be dealt with I as code assessable.
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118. n the alternative, if the assessing officer considers that the non-compliance is minor, I the assessing officer can elect to consider the acceptability or otherwise of the noncompliant element without undertaking a full assessment of the overall project.
Recommendations
119. ll development now classified as exempt or complying is to be categorised as A exempt or code assessable development. 120. single simplified list of these categories of development is to be compiled by a A review led by the Department of Planning and Infrastructure with representation from local government across the range of types of councils in (urban, semi-urban, rural and western New South Wales). 121. he Minister is to establish an ongoing process for consideration of local variation T proposals to classify development as exempt or code assessable development within a local government area.
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Recommendations
122. nly land that is subject to a change of zoning from an agricultural zone to an O environmental zone, as a consequence of the making of a new local plan pursuant to the Standard Instrument template, shall have a right attached to it to make an application to change a specific and declared existing non-conforming agricultural use to a new specific non-conforming agricultural use or to add a new specific nonconforming agricultural use to the declared non-conforming agricultural use. 123. his right is to be available for a 10 year period after the commencement of the T Sustainable Planning Act or after such a change of zoning is effected by the coming into operation of a new local plan based on the Standard Instrument template, whichever is the later date. 124. here are to be no further opportunities permitted to change one non-conforming T use to another non-conforming use after the 10 year period expires. 125. pplications to permit expansion of an existing non-conforming use beyond its A present footprint may be approved if there is no adverse impact as a consequence of the expansion. 126. pplications to intensify an existing non-conforming use are to be permitted but A are to be merit assessable or impact assessable, unless that intensification falls within a class of code assessable development. 127. pplications for expansion of an existing non-conforming use are to be permitted if A there is no adverse impact on other surrounding uses and are to be determined by either a Joint Regional Planning Panel or the Planning Commission.
Incomplete applications
One of the matters raised during our consultation process and discussed in several submissions to the Issues Paper is the rejection by a consent authority, primarily by a council, of a development application because inadequate documentation has been supplied. Some have suggested that incomplete applications should be automatically rejected, whilst others have suggested that such applications be accepted, but with a practice adopted that the inadequacies be identified and the applicant given the opportunity to rectify the deficiency. We note that amendments94 to the present planning legislation provided a right of review of a decision to reject an application. We consider it appropriate that this right of review be in the Sustainable Planning Act. However, if an application is for either merit assessable or impact assessable development, it is inappropriate for an application to be accepted where the consent authority knows that the documentation provided is incomplete.
94 Environmental Planning and Assessment Act 1979, section 82B that came into effect in early 2011
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We reached this conclusion for two reasons: First, we are confident that, over time, there is likely to be a greater adherence to the benchmark times for assessment and determination of properly complete applications than is presently the case. We consider that this is likely for merit assessable and impact accessible development because of the separation out of simpler forms of development. Second, as these two classes of development proposal are those that will be subject to notification and public submissions, it is not appropriate that an application that is inadequate (in any material respect) should be exhibited for public comment in accord with statutory timeframes when full information was not available. This is fundamentally contrary to the broad right to know position that we have adopted throughout the recommendations that we have made. As a consequence, we are of the view that it should be mandatory for a consent authority to reject any application for merit assessable or impact accessible development that is deficient in any material respect. We are also of the view that, if such an inadequate application is accepted and goes through a public notification period whilst deficient, then the legislation should make it expressly clear that any such purported application is void, not merely voidable as a matter of discretion. However, if there are deficiencies in an application as originally presented, an applicant should be able to rectify those deficiencies up to, but no later than, the day upon which the application is made available (physically or electronically) for public comment.
Recommendation
128. pplications that are not complete prior to the day upon which the application is A scheduled to be made available, physically or electronically, for public comment shall be rejected and shall be regarded as not having been lodged.
95 Environmental Planning and Assessment Act 1979, section 23I 96 Environmental Planning and Assessment Act 1979, section 23I(3)
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Recommendations
129. ndependent Hearing and Assessment Panels are to be provided for in the I Sustainable Planning Act. 130. he present qualifications for Independent Hearing and Assessment Panels are to be T retained with the addition of Aboriginal cultural heritage as an area of expertise.
Recommendation
131. ndependent Hearing and Determination Panels are to be provided for in the I Sustainable Planning Act (with the same range of membership qualifications as recommended for Independent Hearing and Assessment Panels), with councils to be able to delegate development decision making to such a Panel.
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We also note that, at the time of writing this Review Paper, there are revised draft Operational Procedures, Code of Conduct and Complaints Handling Policy on exhibition100 for Joint Regional Planning Panels. If adopted, these changes will improve the processes of these Panels.
100 See http://www.planning.nsw.gov.au/tabid/205/ctl/View/mid/1081/ID/67/language/en-AU/Default.aspx 101 See http://jrpp.nsw.gov.au/LinkClick.aspx?fileticket=AXEQtH35je4%3d&tabid=90&mid=453&language=en-AU 102 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337; 176 ALR 644; 75 ALJR 277
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Recommendations
132. ll oral submissions to Joint Regional Planning Panels are to be in public. A 133. ll Joint Regional Planning Panel processes are to incorporate the opportunity for A the proponent and supporters of and objectors to a proposal to be heard by the Panel (with the Panel to set the rules for such presentations). 134. tate Panel members are not to determine matters in the local government area S where they reside. 135. hen a Panel rejects conclusions of or varies recommendations in the assessment W report, the Panel is to give reasons for doing so. 136. here the assessment report recommends approval and there have been W no submissions opposing the development, the council is to remain the consent authority. 137. nvoking the jurisdiction of a Panel by aggregation of projects on different sites in I common ownership is to be prohibited. 138. he Central Sydney Planning Committee is to be brought within the scope of T the Sustainable Planning Act through a separate provision in that portion of the legislation dealing with Joint Regional Planning Panels.
103 imilar to that provided by the Local Government Act 1993, Chapter 4, Part 1 regarding public access to meetings S and information 104 See http://planningreview.nsw.gov.au/LinkClick.aspx?fileticket=kcu3h438Gmg%3d&tabid=119&mid=569
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We are satisfied that there should be a requirement for the written consent of any NSW Crown entity landholder to a development application as an essential prerequisite to its acceptance for lodgement by the relevant consent authority. We consider that, in any other circumstances, any development application that is not accompanied by the written consent of all relevant landholders should be treated as an application with a curable defect. In this case, the application should be accepted on the understanding that if the proposed development is likely to be approved, all relevant landholders consent must be provided prior to determination of the application. It should be mandatory for a consent authority to reject any purported application that is not accompanied by any Crown landholders consent for relevant parcels of land encompassed by the application and owned by any NSW Crown entity.
105 otany Bay Council v Remath Investments No 6 Pty Ltd [2000] NSWCA 364; (2000) 50 NSWLR 312; (2000) 111 LGERA B 446 per Stein JA at para 7 106 SW Trade & Investment (4 March 2012) at p16 http://planningreview.nsw.gov.au/LinkClick.aspx?fileticket=4mEn N ABIN21Q%3d&tabid=119&mid=569
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Recommendation
139. ny development application involving any land owned by any NSW Crown entity A shall not be accepted by a consent authority unless accompanied by the written consent of the landowning NSW Crown entity.
Recommendations
140. he Department is to consult with the Local Government and Shires Association T to develop a set of model delegations for determination by Council staff of development proposals. 141. hese model delegations are not to be mandatory and, if adopted in general terms, T may be modified to reflect local circumstances.
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All modification applications concerning merit assessable or impact assessable development, other than minor modifications, are to be subject to the same notification and assessment process as for an original application for such development. Minor modification applications should be able to be dealt with on a code assessable basis (but only if there is an applicable code), even though the original application was for either merit assessable or impact assessable development. However, before such a relaxation should be permitted, the modification proponent should be required to provide a statement setting out why the proposed modification is minor and would not have any impact outside the site of the proposed development and how the proposed modification complies with the relevant code. The consent authority must be satisfied that this is correct before such a modification application can be treated as code assessable.
Recommendation
142. he modification process in the present planning legislation is to be carried over T to the Sustainable Planning Act, with minor modifications to be code assessable (if there is an applicable code) even though the original application was merit assessable or impact assessable.
Recommendation
143. pplications for development and for approval of construction plans are to A be known as application for development approval and application for construction approval.
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Preparation and wide dissemination of such a guide, in hard copy and electronically, is an important element in community engagement and the restoration of public trust in the States planning system.
Recommendations
144. he Department of Planning and Infrastructure, in conjunction with the Local T Government and Shires Association, is to prepare a plain English guide to the development classification, assessment and determination processes under the Sustainable Planning Act. 145. reparation of the guide is to be under the supervision of the Planning P Advisory Board.
Recommendations
146. hen a consent authority considers that a development proposal has the potential W to cause impacts across a State border or in an adjoining local government area to the local government area where the proposed development is to be located, the consent authority is to notify the relevant land-use authority across the State border or the adjoining council(s) of the proposed development and invite comments on it. 147. he consent authority for the proposed development is to consider and have regard T to any comments received in response to such a request.
110 Capital Airport Group Pty Ltd v Director-General of the NSW Department of Planning (No 2) [2011] NSWLEC 83
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ecologically sustainable in its impacts on the people, animals, plants, air, water and soils of the State economically sustainable, providing the facilities and services to support responsible economic growth socially sustainable, to ensure the health, amenity and general well-being of its citizens.
This planning system should promote transparent, simple and efficient processes while encouraging cultural change by planners and engagement by the people of the State in the planning for and regulation of development. It is for these purposes that this legislation has been enacted.
111 Part C, Chapter 2 112 Sustainable Planning Act 2009 (QLD), sections 3, 4 and 5 113 See Volume 1, Part C, Chapter 3
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Recommendation
148. he Government consider if there should be a preamble to the Sustainable T Planning Act.
Register of consents
It is important in an electronically integrated and accessible planning system to be able to access the development history of a site, including its existing and past development consents and, particularly, any ongoing conditions. Whilst it will not be practical, for reasons of time and cost, to mandate digital back capture of any significance from paper records, it is nonetheless essential that development consents are kept electronically in an ongoing, easily searchable fashion. This will replace keeping a physical, accessible paper register of development consents, as is currently required of each council114. The ability to search for particular development consents and terms within those consents via the planning portal is essential. Electronic records of consents to replace paper registers can be kept from a commencement date agreed with local government. Establishing electronic registration will mean that a private certifier approving code assessable development will need to provide an electronic copy of the consent and its conditions for uploading to the register. Those government entities which are permitted to undertake self assessment and determination processes will also be required to provide an electronic copy of the consent and its conditions for uploading to the register. Electronic copies (or notification depending on whether or not there is a single, central register and what uploading arrangements are set115) will need to be provided to the relevant council for its records. Two other sources of development consent require consideration in the establishment of the register. These are consents granted through orders made in Land and Environment Court proceedings and those given as a consequence of determinations of the Planning Commission. For consents given as a consequence of orders made in Land and Environment Court proceedings, the consent authority whose role has been assumed by the Court should be responsible for putting any consent on the register. In the latter instance, the assessment of the proposal will have been undertaken by the Department of Planning and Infrastructure and the Department should be responsible for putting any consent on the register. Over time, comprehensive electronic availability of development consents will evolve. While some councils may wish to complete digital back capture (and the statutory provisions should facilitate this), back capture should not be mandatory. However, if back capture were to be undertaken, physical records would not need to be held, as the statutory provisions will render the electronically registered consent as the authoritative record of the development and its conditions.
114 Environmental Planning and Assessment Regulation 2000, clause 264 115 Data custodianship arrangements are to be determined as discussed in Part 4 of this volume. This will include determining whether there should be a central register or separate registers for each council.
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Recommendations
149. he Sustainable Planning Act is to require electronic registration of future T development consents and permit (but not mandate) the digital back capture of existing development consents. 150. ll consent authorities (other than the Land and Environment Court and the A Planning Commission) are to be required to ensure that any consent issued is electronically registered. 151. or consents given as a consequence of determinations of the Planning F Commission, the Department of Planning and Infrastructure is to be responsible for electronic registration. 152. or consents given as a consequence of orders made in Land and Environment F Court proceedings, the consent authority whose role has been assumed by the Court is to be responsible for electronic registration. 153. ny person or entity (other than a council) is to be required to notify the relevant A council(s) that a consent has been electronically registered. 154. he Department of Planning and Infrastructure, in co-operation with the Office of T Local Government, is to discuss with the Local Government and Shires Association a commencement date for electronic registration of consents. 155. he register is to be the authoritative repository of all development consents issued T on or after the operative date of electronic registration. 156. or any back capture of consents, the consent authority is to be relieved of the F requirement to maintain physical records after publication on an electronic register. 157. ata custodianship arrangements, including determination of whether there should D be a central register or separate registers for each council, is to be undertaken by the Co-ordinating committee for spatial information.
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Recommendation
158. Consistency or non-inconsistency tests are not to be permitted for code assessable development, unless the proposed development that would otherwise be code assessable is in an identified local heritage conservation area or in the immediate vicinity of a State or locally identified heritage object or group of objects.
116 nvironmental Planning and Assessment Regulation 2000, clause 113 40 days for general development, 60 days E for designated development and integrated development or 90 days for State significant development 117 Environmental Planning and Assessment Regulation 2000, clause 107 118 Environmental Planning and Assessment Act 1979, section 82 119 Environmental Planning and Assessment Act 1979, section 97(1) 120 Environmental Planning and Assessment Regulation 2000, clauses 54, 60 and 112
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Recommendations
159. he consent or concurrence authority, when undertaking assessment of merit and T impact assessable proposals, is to be permitted one opportunity to request further information from the applicant, coupled with the ability to notify the applicant that the assessment period has stopped. 160. he assessment period clock is to be restarted on the date of receipt if the applicant T provides the information to the consent or concurrence authority or notifies the consent or concurrence authority (in writing) that the information will not be provided or fails to provide the information within a reasonable time period. 161. he applicant is also to be permitted the ability to halt the decision making T period upon written request (that can be withdrawn) in order to provide further information or to make representations to the consent authority or about a concurrence authoritys response.
Recommendations
162. or projects falling under the jurisdiction threshold of a Joint Regional Planning F Panel, no quantity surveyors certificate relating to project value is to be required. 163. or projects above the Joint Regional Planning Panel jurisdiction threshold, the F proponent is to be required to provide a quantity surveyors cost certificate, if the assessing authority disputes the accuracy of the stated project value. 164. f the certificate endorses the application value, the quantity surveyors fee is to be I deducted from the application fee. 165. f the certificate shows an applications value to be understated, the correct fee shall I be payable and the quantity surveyors fee is not to be offset.
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Recommendation
166. uring the conciliation phase of conciliation/arbitration proceedings, submitters are D to be able to explain their position but not take any other part in this phase.
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Recommendation
167. he Land and Environment Court Act 1979 is to provide specifically that a consent T authority may apply to the Court to have a concurrence authority joined as a respondent to a merit appeal.
Recommendation
168. he costs provisions of section 97B of the present planning legislation are to be T retained but incorporated in the Land and Environment Court Act 1979.
123 Environmental Planning and Assessment Act 1979, section 97B 124 Environmental Planning and Assessment Act 1979, section 124 125 Protection of the Environment Operations Act 1997, section 250(1)(a) and (b)
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Recommendation
169. he Sustainable Planning Act is to give the Land and Environment Court, in civil T enforcement matters, power to enable it to order publication notifications of the type provided in the Protection of the Environment Operations Act 1997.
Recommendations
170. he Land and Environment Court Act 1979 is to be amended so that, in Class 4 T matters involving the Sustainable Planning Act, Commissioners are able to sit with and assist Judges. 171. onsideration be given to extending this to all matters in Class 4 of the C Courts jurisdiction.
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Recommendations
172. he Land and Environment Court Act 1979 is to be amended so that, in matters T arising in the Courts jurisdiction from the Sustainable Planning Act, ancillary common law matters are able to be commenced in the Land and Environment Court and brought within the planning proceedings. 173. onsideration be given to extending this position to all matters in the Courts civil C jurisdiction.
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Recommendation
174. he Land and Environment Court is to be given the ability to revoke a development T consent for use of land as a deterrent sentencing option in a prosecution for a Tier 1 offence for a breach of the Sustainable Planning Act or any regulations made under it.
Recommendation
175. he right to challenge the validity of a consent is to be retained (with retention of T the present time limit and notification requirements).
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We do not see any necessity to mandate change to what is, in our view, an appropriate discretion being considered in a properly structured fashion, as the Chief Judge has described. For this reason, we do not propose to recommend any alteration to this position.
Compliance costs/expenses
Compliance costs and expenses are one area that was of concern to councils. Specifically, they expressed concern about the costs of undertaking compliance activities where no fees had been paid to fund such activities and that there was no recovery available to them. It is possible for the Land and Environment Court to order wider financial reimbursement than merely legal costs under the provisions of the Protection of the Environment Operations Act 1995 when there has been successful compliance action taken under that Act. The Court is permitted to make a costs/expenses order136, in favour of the enforcing body, to cover investigation/compliance expenses incurred prior to the initiation of the Court action. We consider that this broader scope to order reimbursement of compliance costs/ expenses should be provided for in the Sustainable Planning Act for both civil and criminal enforcement. The availability of this power would give the relevant Court a broader discretion to compensate the enforcement body for the full range of costs/expenses incurred by it.
Recommendation
176. broader costs/expenses reimbursement order making power should be available A in civil and criminal enforcement proceedings brought under the Sustainable Planning Act to enable orders to be made to require the compliance/investigation costs/expenses of the enforcing body to be reimbursed.
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Recommendations
177. he essential elements for council order making powers contained in the present T planning legislation is to be carried into the Sustainable Planning Act. The remainder of the order making, review and appeal processes are to be contained in regulations. 178. he regulations supporting the Sustainable Planning Act are to include the present T table of orders (as an interim measure) pending the recommended review. 179. onsistent with the recommendations concerning urgent applications to shut down C unapproved activities, an additional order is to be included in the table permitting the making of orders to require the immediate cessation of any unapproved activity where there is a demonstrated significant impact (or potential impact) on public amenity, health or safety. 180. he Department of Planning and Infrastructure in conjunction with representatives T of local government, the development industry and community and environmental networks are to review the range of orders contained in the present orders table and recommend any changes that might be made to that existing table of orders.
Recommendation
181. he Sustainable Planning Act is to provide that an order shall not be invalid if, T despite any defects in its drafting, the intention of the order is clear from its terms.
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Recommendations
182. new penalty notice offence is to be created for the provision of false or A inaccurate information. 183. he circumstances under which such penalty notices may be issued are to be set out T by the Department and councils in their compliance and enforcement policies.
139 Environmental Planning and Assessment Act 1979, section 118N(1)(c) 140 Environmental Planning and Assessment Act 1979, section 122T(2) 141 See Volume 1, Part C, Chapter 13 Recommendation 122
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Enforcement policies
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Recommendations
184. he Department of Planning and Infrastructures compliance and enforcement T policies be revised after passage of the Sustainable Planning Act. 185. he revision is to be undertaken under the supervision of the Planning Advisory T Board with implementation to take place after the Minister has considered the Boards advice on the proposed revised policies. 186. he Minister for Planning and Infrastructure write to the Minister for Local T Government asking that Minister to request the panel reviewing the Local Government Act 1993 to consider whether councils should develop or revise compliance and enforcement of policies of a comprehensive nature (not merely for matters arising under the Sustainable Planning Act).
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community groups. There are inherent difficulties in establishing such a scheme with sufficient funding or establishing an open and transparent process for selecting who would have access to that funding pool. We are also persuaded that the significant cost of preparing an Environmental Impact Statement for a major project (cost that has increased significantly since the present planning legislation came into effect, largely as a result of better scientific knowledge of potential issues that require addressing), would make such a levy an economic disincentive to project proposals. Having made all of these essentially negative comments, we should make it clear that some improvement on the present process is both necessary and desirable in order to assist restore public confidence in assessing major projects.
Although there are attractions to it, such an accreditation system would have consequences well beyond merely the planning system. As with the building industry143, it is beyond the scope of this Review to suggest the nature of such an accreditation scheme (if it were to be established); what body should undertake the accreditation process; and how should the system be maintained (including issues such as professional indemnity insurance, mandatory continuing professional development programs, disciplinary procedures and the like). However, the support given to accreditation by the NSW Treasury renders it an idea worthy of further exploration. Because of this, we have concluded that it is appropriate to recommend a reference be made to the Legislative Council Standing Committee on State Development to investigate this matter.
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Recommendation
187. reference is to be given to the Legislative Council Standing Committee on State A Development to investigate whether an accreditation system should be adopted for consultants preparing environmental studies (including those that support Environmental Impact Statements).
Carbon accounting
In the Issues Paper, we asked144 whether carbon accounting should have a role in the assessment requirements for development proposals. We have concluded that it is not appropriate to specify when carbon accounting needs to be addressed in an Environmental Impact Statement. Clearly, such a requirement should only be incorporated if there are significant potential greenhouse gas emission issues arising from the project activities (both Scope 1 and 2), rather than from just downstream impacts (Scope 3)145. We have also considered whether it would be possible to provide some guidance on what might be such a requirement, but it is clear from the information available from the Australian Department of Climate Change and Energy Efficiency that the complexity of the process involved is not amenable to simple explanation. We have, therefore, not attempted to provide a definition but simply note that such a requirement may, from time to time, be incorporated in Environment Impact Statement requirements set by the Director-General of the Department of Planning and Infrastructure for a proposed project.
144 Question D45 at page 67 145 ee http://www.climatechange.gov.au/government/initiatives/national-greenhouse-energy-reporting/ S publication-of-data/understanding-nger-data.aspx 146 See Volume 1, Part C, Chapter 6
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the same confidentiality issues. As a consequence, when the Director-General issues requirements for the preparation of an Environmental Impact Statement, those requirements should be made public. This constitutes a relevant element of our right to know approach. Finally, we consider that there should be a right of appeal to the Land and Environment Court against these requirements, if the potential development applicant considers that they are inappropriate.
Recommendations
188. ssuing of Director-Generals requirements for preparation of Environmental Impact I Statements is to be retained in the Sustainable Planning Act. 189. o the extent that it is possible, the Department of Planning and Infrastructure is T to publish on its website a template of the Director-Generals requirements for the preparation of an Environmental Impact Statement for development proposals. 190. ny Director-Generals requirements issued for a possible development are to be A made publicly available on the Departments website together with identification of the area encompassed by the possible development. 191. here is to be a right of appeal to the Land and Environment Court by a potential T project proponent to challenge the Director-Generals requirements.
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We are also mindful of the fact that this is an entirely new step in the processes that will be available, formally, within the assessment process for major projects. As a consequence, we consider that this reform needs to be approached with some caution to ensure that it is not overused and causes significant unnecessary work or expense for proponents. As a consequence, this reform is to be implemented by regulation, reviewed after 12 months and fine tuned, if required.
Recommendations
192. ssessing authorities are to be permitted to require peer reviewing of reports or A information provided in support of an Environmental Impact Statement. 193. eer reviewing can only be requested on one occasion but may be requested on P more than one aspect of the proposal. 194. or proposals by assessing authority other than the Department of Infrastructure F and Planning for peer reviewing, the concurrence of the Director-General is to be obtained. 195. hen the assessing authority is the Department, such request shall be referred to W the Chairperson of the Planning Commission to be dealt with on the papers. 196. he assessing bodies seeking the peer review shall nominate three proposed T peer reviewers from which the project proponent can select the reviewer to be commissioned. 197. he peer reviewing is to be undertaken at the proponents expense. T 198. f peer reviewing is required, an additional period of five working days shall be I added to the statutory assessment period for the project. 199. he results of any peer review are to be published on the assessing T authoritys website. 200. his process is to be given effect by regulation so that it can be reviewed after the T expiry of 12 months.
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147 Volume 1, Part J, page 135 148 ee http://planningreview.nsw.gov.au/LinkClick.aspx?fileticket=-PKqycR35oQ%3d&tabid=105&mid=516 and S http://planningreview.nsw.gov.au/LinkClick.aspx?fileticket=xNLWc_oTltg%3d&tabid=119&mid=569 149 See http://planningreview.nsw.gov.au/LinkClick.aspx?fileticket=xNLWc_oTltg%3d&tabid=119&mid=569
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It is clear that there must be significant consultation with the New South Wales Land Council, each relevant Local Aboriginal Land Council and the local government council within whose area each former Aboriginal reserve or mission is located. Integration must be achieved in a fashion that realistically recognises their present uses and the aspirations of the Aboriginal communities that live on or are associated with these sites. It is only if there is an agreed consultation process, including sufficient time for affected communities both Aboriginal and non-indigenous to comment on and participate in the process, that there is any realistic prospect of significant progress being made in integrating these sites into the conventional land-use planning system. It is equally clear to us that it must be a measured approach, staged over time, so that it is able to be accommodated within the processes we recommend below and within the resources available to those bodies and communities which need to be involved. In recognition of this, an indicative sequencing list should be negotiated for the proposed integration processes by the following bodies: the Department of Planning and Infrastructure the New South Wales Aboriginal Land Council (with this Council involving relevant Local Aboriginal Land Councils as it considers appropriate for sequencing) the Local Government and Shires Association (together with such councils as the Association considers appropriate in these sequencing discussions). It may also be appropriate to involve the Office of Local Government given that issues relating to whether or not the outcomes of the process might require a revisiting of the relevant provisions150 relating to council rates on land owned by a Local Aboriginal Land Council and, if so, under what circumstances. Historically, the issues are legacies of the action or inaction of State governments rather than of local governments. As a consequence, when a work plan emerges from the sequencing discussions, the assessment processes to be undertaken should be projects for the relevant regional office of the Department of Planning and Infrastructure. Given the nature of these issues and their history stretching back to the 19th century, we do not consider it appropriate that the Department charges any application fees for undertaking this process. The Departments process should be one that is facultative with an initial consultation process to develop a work program that identifies the following: the nature of the information required the nature of any application appropriate to proceed to the Planning Commission. When an assessment has been undertaken, the point should be reached where there can be some form of public process undertaken by the Planning Commission holding public hearings and making a determination about an application or making recommendations to the Minister on how a matter should proceed further.
150 Aboriginal Land Rights Act 1983, Part 2 Division 5 and Aboriginal Land Rights Regulation 2002, Part 2 clause 7
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Recommendations
201. he Department of Planning and Infrastructure, the New South Wales Aboriginal T Land Council (with this Council involving relevant Local Aboriginal Land Councils as it considers appropriate for sequencing), and the Local Government and Shires Association (together with such councils as the Association considers appropriate in these sequencing discussions) are to develop an indicative sequencing list for integrating Aboriginal reserves and missions into the new planning system. 202. f these parties considered it appropriate and the Office of Local Government I indicated a wish to participate, the Office of Local Government is also to be involved in the sequencing discussions. 203. or each former Aboriginal reserve or mission, the assessment process is to be F undertaken by the relevant regional office of the Department of Planning and Infrastructure. 204. he Departments process is to be facultative and include identifying the nature of T the information required and the appropriate form that an application might take to effect integration of the lands being assessed into the new planning system. 205. hen an assessment of any former Aboriginal reserve or mission has been W completed, there is to be a public process undertaken by the Planning Commission, either holding public hearings and making a determination on any application that may have been made arising from the assessment process or holding public hearings and making recommendations to the Minister on how that matter should proceed further. 206. he Department is not to charge any fee for undertaking this process. T
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Community Engagement
Recommendation
207. he continuing professional development working group recommended in Volume T 1 Part I is to incorporate a module on opportunities for active communication with the community in the program that they develop.
Precinct committees
A number of urban councils have established precinct committees for interested community groups or individuals in an identified locality to provide guidance on issues affecting a locality or on broader policy issues. Their role is relevant for strategic planning, local land-use planning, localised development control preparation, and development proposal assessment activities of a council. Although we acknowledge the valuable role of these committees, we do not consider it appropriate to contemplate any form of statutory recognition in the Sustainable Planning Act for these bodies. We consider that councils, particularly in urban areas where precinct committees have not been established, should be encouraged to consider such a structure. To assist in this process, it is desirable a plain English, best practice guide be prepared on the establishment, roles and operation of precinct committees and provided to urban councils or provincial city councils. Obviously, in the preparation of such a guide, those councils presently operating such committees can provide valuable assistance, as would both the Office of Local Government and the Local Government and Shires Association.
151 See Volume 1, Part H at pages 130-10 152 See Volume 1, Part I at page 133
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Recommendations
208. he Department of Planning and Infrastructure is to convene a working group T comprising representatives of the Office of Local Government and the Local Government and Shires Association and representatives of those councils currently operating a precinct committee system wishing to be involved in the working group. 209. he task of the working group is to produce a plain English guide to best practice in T the establishment, roles and operation of precinct committees.
Recommendation
210. he Departments website is to include an interactive map to facilitate access to T information concerning all projects being assessed by the Department.
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Recommendations
211. he Department of Planning and Infrastructure is to prepare a Local Land-Use Plan T and Development Control Plan for the unincorporated area. These plans are to be prepared in conjunction with the Western Lands Commissioner and in consultation with the Western Lands Advisory Council, the New South Wales Minerals Council, the National Parks and Wildlife Service and any boards of management of Aboriginal-owned and jointly-managed National Parks in the unincorporated area.
155 See Volume 1, Part K from page 136 156 See Volume 1, Part C, Chapter 5 at page 51 157 A Local Land-Use Plan and a Development Control Plan
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212. he consent authority for development proposals in the unincorporated area is to T be the Western Lands Commissioner, with the following exceptions: code assessable Crown development, development that will fall within the jurisdiction of a Joint Regional Planning Panel or development that will fall within the jurisdiction of the Planning Commission. 213. he consultation process for the development of the Land-Use Plan for the T unincorporated area is to include specific consultations about the range of matters that can be regarded as code assessable developments within this planning framework, particularly on pastoral holdings.
We have considered carefully whether we should address this topic, as it is a very specific planning issue. However, we have concluded that we should do so because of the economic importance of Newcastle as the northern end of what is increasingly becoming the integrated conurbation of Newcastle, Sydney and Wollongong and its role as gateway to the Hunter Valley. In doing so, we note that Newcastle City Councils submission supported the proposition that there should be a statutory basis for recovering the cost of necessary rehabilitation and stabilisation measures from all benefited property owners. It seems, at the least, that it is necessary that such a scheme operate by a combination of measures to identify the planning and geographic context for funding preventative works, via the Mines Subsidence Board, so as to encourage a first-moving re-development project within the schemes area. As a consequence, we propose that the Sustainable Planning Act permit identification of the area within which such a scheme can operate; the planning process for the potential mine subsidence consequences that would need to be addressed for such a redevelopment; and the extent to which those works would need to extend within the boundaries of adjacent properties, whether publicly or privately owned. Works that extended under adjacent properties in private ownership would need to be able to be undertaken (if owners consent were not given for those works) by removal of the requirement for owners consent being required. As this is potentially controversial, we propose that any such scheme not come into effect until after an extensive consultation process is undertaken with property owners in the area identified for such a scheme.
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It will also be necessary to fund those elements of the works for the redevelopment of any particular site that fall outside the boundaries of a site. The only possible source of funding that we are able to identify is from the Mines Subsidence Board with the Board recouping the funds from other benefited private landholders at the time of redevelopment. Although the possibility of establishing such a scheme raises complex issues, we consider it desirable that a framework be established in the Sustainable Planning Act. However, we do not envisage that the scheme would become operational until there had been close consultation with property owners, the Mines Subsidence Board and Newcastle City Council to identify any area that would be encompassed and how, in a practical sense, it would operate. In addition to incorporation of the above proposed facultative provisions in the Sustainable Planning Act, amendments may need to be made to the Mines Subsidence legislation, at a future time, to permit a scheme to become operational. This may well provide an appropriate further basis for government consideration of such a proposal prior to its implementation.
Recommendations
214. he Sustainable Planning Act to include particular provisions facilitating T establishment of a scheme to encourage redevelopment of mine subsidence areas identified within the Newcastle Central Business District. These provisions are to permit a scheme to be able to be implemented to allow the proposed redevelopment to proceed, without owners consent being given by owners of properties adjoining any property proposed to be redeveloped or where the adjoining properties would require to have subsidence prevention measures undertaken under them. 215. s such provisions may also have wider application than merely Newcastle, they are A to be drafted in general terms. 216. hese legislative provisions are not to come into effect until the Government is T satisfied that an appropriate scheme for doing so has been developed by the Department of Planning and Infrastructure, in conjunction with landholder interests in the identified area, Newcastle City Council and the Mines Subsidence Board.
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One proposal concerned existing agricultural holdings with more than one existing or potential dwelling entitlement. The proposal was that it should be possible to realise the value of extra dwelling entitlements without fragmenting the landholding by doing the following: transferring the additional dwelling entitlement to an existing allotment at another location extinguishing that dwelling entitlement on the agricultural land holding. This, it was suggested, had two potential benefits to existing rural landholders: land holders who wish to retire could transfer a dwelling entitlement to an allotment without one closer to a nearby township. This would make it more economically efficient, as it would cost significantly less to acquire the new allotment. existing landholders could sell a dwelling entitlement to the owner of an allotment that did not have one. This would potentially provide a cash benefit to the existing landholders, which could either support ongoing agricultural activities or provide a financial basis for the older generation to move off the landholding and transfer it to a new generation in the same family. This concept would need considerable further development before it could be considered for incorporation into the Sustainable Planning Act. The legislative amendments that might need to be made to other statutes (such as the Real Property Act 1900) are potentially complex. Equally, difficult issues could arise for councils when assessing the competing values that would require consideration. As a consequence, at the present time, we do not recommend that such rights should be created. However, we do consider that further work is warranted. To this end, we recommend that a working party should explore this matter further and make recommendations to the Minister for Planning and Infrastructure as to whether any further legislative changes are required.
Recommendation
217. working party is to be established comprising representatives of the Department A of Planning and Infrastructure, the Local Government and Shires Association and the New South Wales Farmers Association to consider whether creating transferable development rights for agricultural land is feasible and desirable and, if so, how it should be implemented.
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Certification matters
159 Environmental Planning and Assessment Regulation 2000, clause 145(1)(a) 160 Volume 1, Part C, Chapter 14 at page 112
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Certification matters
between the development consent and the construction approval plans as executed are minor ones, is, in our view, a matter that must await any broader examination of the building industry. We have reached this conclusion because requiring such certification as an element of the Final Occupation Certificate may well involve a necessity for additional inspections and incur additional costs costs that might well be entirely disproportionate for projects of modest scale. A different position arises with respect to an Interim Occupation Certificate, which can be used, effectively, to postpone indefinitely the completion of a project, whilst having the benefit of utilising the elements for which such an Interim Occupation Certificate has been given. We do not think that this position is appropriate because the concept of something being interim contemplates that finality will be achieved. We therefore propose that an Interim Occupation Certificate should have a maximum life of five years and that, after the expiry of that period, the certificate should lapse. Only one Interim Occupation Certificate is to be permitted for any single aspect of a particular project, whether works or a use of land. Should an Interim Occupation Certificate lapse, there will no longer be an entitlement to occupy or use the element of the development covered by the certificate, so a council would be able, if it chose to do so, to order cessation, as continued occupation would constitute an unapproved activity after the lapsing of the Interim Occupation Certificate.
Recommendations
218. nly one Interim Occupation Certificate is to be permitted for any single aspect of O a particular project. 219. nterim Occupation Certificates are to lapse after five years. I
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163 See Volume 1, Part C, Chapter 3 at page 37 164 BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399 at para 117
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Rejected matters
There was near universal opposition to this proposition despite the fact that, during the consultation process leading up to the release of the Issues Paper, this question was raised on a number of occasions. Although one element of the overarching objective of the legislation must be to encourage sustainable economic growth, we are satisfied that the planning system should not endeavour to pick winners and, as a consequence, the economic viability of a development proposal should not be taken into account in determining whether the proposal is acceptable in land use planning terms.
For similar public policy reasons to those that cause us to reject consideration of the economic viability of a development proposal, we consider that the mere threat of competition to existing business is not a relevant planning consideration.
165 erformance Benchmarking of Australian Business Regulation: Planning, Zoning and Development Assessments P May 2011 (http://www.pc.gov.au/projects/study/regulationbenchmarking/planning/report); Economic Structure and Performance of the Australian Retail Industry December 2011 (http://www.pc.gov.au/projects/inquiry/ retail-industry/report) 166 Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 24 ALR 161 167 Kentucky Fried Chicken Pty Ltd v Gantidis at para 170
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15
Rejected matters
173 Taralga Landscape Guardians Inc v Minister for Planning and RES Southern Cross Pty Ltd [2007] NSWLEC 59; (2007) 161 LGERA 1 at paras 150 174 public positive covenant imposes obligations on the new owner of land in favour of a prescribed authority. A These obligations include: carrying out specified development on or with respect to the land the provision of services on or to the land or other land in its vicinity the maintenance, repair and/or insurance of any structure or work on the land. ee http://rgdirections.lpi.nsw.gov.au/deposited_plans/easements_restrictions/positive_covenants/public_ S positive_covenants
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We do not accept this proposition. Public positive covenants provide a useful method of giving notice to prospective purchasers of property of ongoing requirements arising from a development consent. Their use is not widespread and they remain an appropriate tool to be available to councils. The merit of any such requirement can be tested by an appeal against the condition that requires this type of covenant to be registered.
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Glossary
Glossary
Adversarial process When representatives of two opposing parties contest a dispute in the presence of a decision maker (contrast with Inquisitorial process below). Affordable housing Housing for very low income households, low income households or moderate income households, being such households as are prescribed by the regulations or as are provided for in an environmental planning instrument. (Currently defined in section 4 of the Environmental Planning and Assessment Act 1979). Assessment The evaluation of a proposal to undertake development. Cadastre Data about property, including ownership, location, dimensions and the like. Charette A collaborative planning and design process that brings together community members to facilitate problem solving and/or acquiring input into urban planning and design. Consent authority A decision maker who determines a development application currently under Part 4 of the Environmental Planning and Assessment Act 1979. DCP See Development Control Plan Designated development Development described in Part 1 of Schedule 3 of the Environmental Planning and Assessment Regulation 2000. Determination The decision of a determining authority or consent authority either to approve a proposal to undertake development (either unconditionally or subject to conditions) or refuse a proposal to undertake development. Development Assessment Forum A national multipartite advisory forum which develops and recommends leading practices for planning systems and development assessment in Australia. Development consent Permission granted by a consent authority to carry out a particular development. Development Control Plan (DCP) Documents that contain detailed requirements for the development that is allowed to take place under an Environmental Planning Instrument. A development control plan in not an Environmental Planning Instrument, but must be considered by a decision maker when determining a development application. Development standard Provisions under which requirements are specified or standards are fixed in respect of any aspect of future development. Please see full current definition in section 4 of the Environmental Planning and Assessment Act 1979. Environmental Planning Instrument Documents made pursuant to the Environmental Planning and Assessment Act 1979 that control development and specify land use for particular areas. These include State Environmental Planning Policies and Local Environmental Plans. Gateway determination An initial review of a planning proposal (a proposed change to or creation of a Local Environmental Plan) by the Minister, who determines whether the matter should proceed, and whether it should be amended and what environmental assessment and public consultation requirements should be undertaken in the preparation of the final planning proposal. Geoportal A type of web browser used to find and access geographic information and spatial datasets. Greenfield development Development taking place on undeveloped land, usually on the outskirts of an urban area. Infill development The redevelopment of already developed land in existing urban areas.
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The Way Ahead for Planning in NSW | Recommendations of the NSW Planning System Review | Volume 2 Other Issues | June 2012
Inquisitorial process When the decision maker combines investigative and judgmental roles (contrast with Adversarial process above). Issues Paper A document prepared by the NSW Planning System Review entitled, The Way Ahead for Planning in NSW? Issues Paper of the NSW Planning System Review, December 2011. Judicial review A review of the legality of a decision conducted by a judge. Joint Regional Planning Panel Independent planning bodies established under the Environmental Planning and Assessment Act 1979 to assume a councils functions as a consent authority for types of specified, larger-scale developments. Land and Environment Court A court established by the Land and Environment Court Act 1979 to determine environmental, development, building and planning disputes, with the same status as the Supreme Court of New South Wales, and which is subject to the supervision of the New South Wales Court of Appeal. Land use table Categories of development types contained in a Local Environmental Plan. These categories are usually development permitted without consent, permitted with consent or prohibited. LEP See Local Environmental Plan. Local Environmental Plan (LEP) An Environmental Planning Instrument prepared by a relevant planning authority, usually a council, and made by the Minister for the purposes of achieving any of the objects of the Environmental Planning and Assessment Act 1979. Local Planning Panel A Ministerially appointed independent panel made up of three local government members and two State appointed members to increase local government involvement in the plan-making process and improve the flexible delivery of the Standard Instrument local environmental plan.
Metadata Data about data. Metadata plays two important roles. The first is to help users identify and find information. The second is to enable users to establish for themselves whether the data is suitable for its intended use. Mine subsidence Movement of the ground as a result of collapse or failure of underground mine workings. Minister for Planning and Infrastructure The Hon. Brad Hazzard MP. Non-conforming use A land use that is not permitted by the current zoning of the land, but which was an existing use at the time of the zoning of the land. NSW Planning System Review An independent panel established in July 2011 to undertake a review of planning law and planning system in New South Wales and to make recommendations for reform in consultation with the community and stakeholders. PAC See Planning Assessment Commission Planning Advisory Board A proposed body to provide advice to the Minister for Planning and Infrastructure, principally on strategic planning and the implementation of the new planning system. Planning agreement An agreement or arrangement between a planning authority and a person who is developing land, where the person developing the land is required to dedicate land, pay a monetary contribution or provide another material public benefit for a public purpose. Also known as a Voluntary Planning Agreement. Planning Assessment Commission (PAC) An independent body corporate established by the Environmental Planning and Assessment Act 1979 to undertake delegated functions, including the provision of advice and the determination of project applications, principally of state significance. Proposed to be reformed and renamed the Planning Commission.
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Glossary
Planning certificate Issued by councils to landowners and prospective purchasers containing information about a specific parcel of land, including the planning controls that apply to that land, also know as section 149 certificates. Planning Commission An independent decision making and advisory body proposed to be established under the proposed Planning Commission Act. Planning proposal A proposed amendment to a Local Environmental Plan or the proposed creation of a new Local Environmental Plan. Precautionary principle Where there are threats of serious or irreversible environmental damage, implementing measures to prevent environmental degradation should not be delayed because of lack of full scientific certainty. When applying the precautionary principle, decisions should be guided by careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment and assessment of the consequences of various options in terms of their risks. Private certifiers Private building surveyors who are responsible for assessing and signing off on detailed plans and construction phases of certain development. Prohibited development Development which is forbidden to be carried out in a zone by the provisions of an environmental planning instrument or development that cannot be carried out on land with or without development consent. As currently defined in section 4 of the Environmental Planning and Assessment Act 1979. Public Positive Covenant An obligation created for an owner of land in favour of a public authority (prescribed authority) and may include the carrying out of specified development, provision of services, maintenance, repair or insurance of a structure on land. Public positive covenants are created under either section 88D or section 88E of the Conveyancing Act 1919.
Section 149 certificates Planning certificates, issued by councils pursuant to section 149 of the Environmental Planning and Assessment Act 1979, to landowners and prospective purchasers containing information about a specific parcel of land, including the planning controls that apply to that land. See Planning certificate. SEPP State Environmental Planning Policy (See State Environmental Planning Policy) Spatial data Data that has a direct or indirect reference to a specific location or geographical area. Spatial datasets An identifiable collection of spatial data. Spatial data services Operations performed on a computer, which enable the spatial datasets to be viewed on-line, downloaded and to be reformatted (or transformed) so that they can be used in other applications. Standard Instrument Local Environmental Plan A standardised format for all new Local Environmental Plans made after 31 March 2006 set by the Standard Instrument (Principal Local Environmental Plans) Order 2006. State Environmental Planning Policy (SEPP) An environmental planning instrument made by the Governor for the purposes of achieving any of the objects of the Environmental Planning and Assessment Act 1979. State Environmental Planning Policies override any conflicting provision in a Local Environmental Plan Stop the clock The ability to suspend assessment of a development proposal while seeking further information. The Act/the present planning legislation Environmental Planning and Assessment Act 1979 The Court See Land and Environment Court of NSW Triple bottom-line decision making Equal consideration of the environment, economy and society in decision making.
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Unincorporated area Areas of Far Western New South Wales that are not part of any Local Government Area (not including Lord Howe Island). Unitary planning document The composite planning document proposed to apply to any parcel of land. It will comprise three elements State controls, the relevant Local Land-Use Plan and the relevant Development Control Plan. Web GIS An internet accessible geographic information system.
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Index
Index
A
Aboriginal reserve 4, 25, 119, 120, 121 affordable housing 16, 80, 81, 82, 136 alternative decision making 13, 68 amber light 68 amendments to code assessable development 13, 68, 69 amendments to merit assessable and impact assessable development 69 application fee 12, 21, 50, 51, 54, 55, 102, 120 Architectural review and design panel 14, 70 assessable development 13, 14, 15, 16, 17, 18, 21, 64, 65, 68, 69, 70, 73, 74, 75, 77, 78, 83, 84, 85, 87, 88, 89, 96, 99, 100, 101, 124, 129, 131, 133 assessment of application 52, 101 assessment report 14, 19, 28, 33, 66, 72, 73, 74, 91, 92, 93 concept plan 129 conciliation/arbitration model 103 concurrence 6, 7, 8, 13, 15, 21, 22, 24, 30, 31, 32, 35, 37, 38, 39, 42, 60, 68, 77, 101, 102, 103, 104, 118, 133 conditions of development consent 15, 76, 77, 134 conflicts of interest 92 consent authority 16, 19, 20, 21, 22, 26, 35, 53, 71, 77, 78, 79, 85, 89, 90, 93, 94, 95, 96, 97, 99, 100, 101, 102, 103, 104, 114, 119, 125, 128, 129, 133 continuing professional development 25, 60, 61, 115, 122 copyright 57, 124 costs order 22, 72, 103, 104, 107 council 4, 8, 9, 10, 11, 12, 13, 14, 15, 17, 18, 19, 20, 21, 23, 24, 25, 26, 27, 28, 31, 33, 34, 35, 39, 41, 42, 43, 44, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 59, 60, 65, 67, 68, 69, 70, 72, 73, 75, 78, 80, 83, 84, 85, 87, 89, 90, 91, 92, 93, 94, 95, 97, 99, 100, 102, 103, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 133, 134, 135 council order making power 23, 110 Court of Appeal 8, 35, 36, 40, 80, 137 cross border impact 20, 97 cumulative impact 44, 59 definitions 16, 79, 80, 82, 83 Department of Planning and Infrastructure 6, 7, 8, 10, 11, 12, 13, 14, 15, 18, 20, 21, 23, 24, 25, 26, 27, 28, 31, 33, 36, 38, 40, 42, 44, 48, 50, 52, 58, 59, 60, 61, 62, 71, 74, 77, 85, 87, 97, 99, 100, 110, 112, 113, 114, 116, 117, 120, 121, 123, 124, 126, 127 designated development 101 design criterion 21, 100 determination period 65 development application 11, 12, 17, 19, 21, 28, 29, 50, 51, 52, 54, 55, 60, 64, 86, 89, 90, 94, 95, 96, 101, 102, 131, 133 development application fee 12, 54, 55 Development Assessment Forum 16, 82, 83 development consent 15, 16, 20, 21, 23, 46, 49, 50, 57, 68, 76, 77, 78, 79, 84, 85, 94, 99, 100, 106, 107, 109, 128, 130, 133, 134 development contribution 12, 55 Development Control Plan 9, 11, 26, 42, 47, 50, 74, 77, 100, 124 development standard 17, 42, 66, 84, 86 Director-General 7, 10, 11, 24, 31, 38, 41, 42, 48, 60, 97, 106, 116, 117, 118 Director-Generals requirements 24, 116, 117 duty to cooperate 57, 59
C
carbon accounting 116 climate change 116 code assessable 13, 14, 15, 17, 18, 20, 21, 26, 64, 68, 69, 71, 74, 75, 77, 78, 83, 84, 86, 87, 88, 89, 96, 99, 100, 101, 124, 125, 129, 131, 133 commercial viability 132 community compensation 79 community consultation 13, 43, 63, 64, 67, 79 community engagement 3, 15, 25, 74, 97, 122 compensation 30, 79, 106 compliance cost 23, 44, 108
E
economic viability 132 economy 4, 48, 81, 138 electronic access 63, 143 electronic register 21, 57, 85, 100 email 65
D
deemed approval 133 default conditions of consent 133
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enforcement 22, 23, 24, 105, 107, 108, 111, 112, 113environmental impact statement 24, 42, 114, 115, 116, 117, 118 Environmental Planning Instrument 29, 124 e-planning 11, 12, 50, 52 existing use 18, 87, 88
L
Land and Environment Court 6, 7, 8, 11, 20, 22, 23, 24, 29, 30, 32, 33, 35, 36, 37, 38, 40, 49, 77, 78, 95, 99, 100, 101, 103, 104, 105, 106, 107, 108, 109, 112, 117 land owners consent 19, 94 land use 4, 63, 98, 132 Local Environmental Plan 41, 42, 50, 64, 136 local infrastructure plan 10, 11, 47, 48, 49, 50 Local Planning Panel 137 lodgement 17, 52, 84, 94
G
Governor-in-Council 31
H
heritage 12, 14, 15, 17, 19, 21, 53, 54, 56, 57, 70, 74, 75, 83, 84, 90, 91, 100, 101, 115 hospital 70
M
master plan 129 metadata 57, 137 mine subsidence 26, 125, 126, 137 Minister for Planning and Infrastructure 6, 13, 15, 24, 28, 29, 30, 31, 37, 41, 53, 60, 62, 68, 74, 75, 112, 113, 127 minor 4, 6, 13, 15, 17, 18, 20, 31, 33, 37, 64, 65, 69, 75, 76, 78, 80, 86, 87, 91, 96, 104, 128, 130 minor non-compliance 17, 86 model delegation 19, 95 modifications to existing approved development 20, 95
I
impact assessable 13, 14, 16, 17, 18, 20, 21, 65, 68, 69, 70, 73, 74, 78, 85, 86, 88, 89, 96, 101, 102, 116 Independent Commission Against Corruption (ICAC) 4, 46, 59, 60, 61, 62, 63, 64, 66 Independent Hearing and Assessment Panel 19, 53, 70, 90, 91 Independent Hearing and Determination Panel 12, 19, 53, 54, 91 information technology 11, 12, 52, 143 interactive map 26, 65, 123 interim occupation certificate 27, 129, 130 Issues Paper 5, 42, 47, 59, 79, 81, 83, 89, 92, 94, 114, 116, 125, 126, 132, 134
N
Newcastle 26, 27, 125, 126 NIMBY 72 notification requirement 23, 107
O
objector 19, 22, 34, 66, 93, 103 occupation certificate 27, 129, 130 open standing 66, 107
J
Joint Regional Planning Panel 9, 12, 17, 18, 19, 21, 26, 29, 36, 42, 53, 54, 64, 66, 67, 75, 84, 85, 86, 88, 89, 90, 91, 92, 93, 102, 124, 125
P
Part 3A 28, 29, 41 past performance 133 physical commencement 80 plan making 13, 62, 67
Planning Advisory Board 15, 20, 24, 62, 64, 74, 97, 112, 113, 124 planning agreement 10, 46, 47, 60, 63, 66 Planning Assessment Commission 10, 28, 29, 34, 36, 37, 41, 45, 53 Planning Commission 4, 6, 7, 8, 9, 10, 11, 12, 14, 17, 18, 20, 24, 25, 26, 28, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 45, 48, 52, 53, 54, 60, 61, 62, 64, 66, 74, 85, 86, 88, 89, 99, 100, 117, 118, 120, 121, 125 Planning Institute of Australia 61 planning portal 52, 99 Planning Reform Fund 11, 12, 50, 51, 52 precinct committees 26, 122, 123 private certification 5, 74, 128 prohibition 15, 60, 75 project value 21, 102 property value 134 public authorities 14, 17, 70, 71, 84, 85 Public benefit infrastructure 61, 71 public consultation 64 public exhibition 29 public interest 8, 16, 34, 39, 60, 61, 78, 79, 80, 107 public interest condition 16, 78, 79 public notification 15, 64, 76, 85, 90 public participation 7, 39, 66, 69, 92 public positive covenant 134, 135 public purpose 70 public submission 63, 73, 90
Q
quantity surveyors certificate 21, 102
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Index
R
register of consents 20, 57, 76, 85, 99 revocation 23, 106 rezoning 15, 60, 64, 75, 76 right to know 25, 90, 93, 117, 122, 123 road 35, 51
U
unincorporated area 26, 124, 125 unitary planning document 11, 47, 49, 50, 62, 124 universities 12, 55, 70 utilities 57
V
voluntary planning agreement 10, 46, 47, 60, 63, 66
S
school 70 section 149 certificate 138 security bond 16, 78 self assessment 99 spatial data 4, 56, 57, 58 Spatial Information Act 4, 13, 56, 57, 58 Standard Instrument template 18, 89 State Development 24, 115, 116 State Environmental Planning Policy 63 State significant development 28, 61, 101 State significant infrastructure 9, 41, 42, 60, 61, 62, 71, 85 stop the clock 21, 101 strategic planning 10, 13, 43, 44, 50, 59, 61, 63, 67, 74, 81, 122 strict liability 23, 110, 111 student accommodation 12, 16, 55, 81, 82 submission 4, 10, 14, 19, 29, 33, 34, 42, 43, 46, 47, 59, 63, 70, 73, 79, 81, 83, 89, 90, 93, 94, 98, 109, 114, 115, 119, 125, 128, 131, 133, 134, 143 sustainable development 16, 80, 81, 83
W
Western Lands Commissioner 26, 124, 125
Z
zoning 18, 64, 75, 87, 89, 131, 132. See alsorezoning
T
time period 21, 73, 101, 102, 133 transferable development right 27, 126, 127 triple bottom-line 138
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4.
5.
6.
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Notes
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Notes