The Way Ahead For Planning NSW Vol. 2 2012

The Way Ahead for Planning in NSW Recommendations of the NSW Planning System Review
June 2012
Volume 2 Other Issues
About the Authors

Tim Moore:
A ppointed Senior Commissioner of the Land and Environment Court of New South Wales on 12 March 2009 C ommissioner of the Land and Environment Court (appointed November 2002) B achelor of Laws (UNSW) 1977 G raduate Diploma in Planning (UTS) 2008 M ember of the NSW Legislative Assembly for the Electorate of Gordon between 1976-1992 N ew South Wales Minister for the Environment 1988-1992 E xecutive Director of the NSW Master Builders Association 1992-1993 A ssistant Secretary, Department Prime Minister and Cabinet and Secretary to the Council for Aboriginal Reconciliation 1993-1996 P ractised as a barrister in the areas of planning and environment law, commercial and corporations law and building disputes 1997-2002
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.
Letter to the Minister from Joint Chairs
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
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
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.
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
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.
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.
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.
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.
The role of the Minister

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 State W 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. 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 T is to 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 to T Development Control Plans and the power to make, amend or revoke a Development Control Plan if the council does not implement the Ministers direction. 43. he Ministers general legislative and regulation making functions are otherwise to T remain unchanged.
The role of the Department

44. he Department is to establish a programme for staffing exchanges with larger regional T city councils. 45. he Department is to second staff to smaller rural councils to assist in strategic planning T 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 a T cycle of trainee placements with regional and rural councils. 48. he Department is to review the timing, location and costs of meetings between T 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.
The compliance role of the Department

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.
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.
Accountability and planning agreements

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.
Content of Local Infrastructure Plans

53. ouncils are to submit draft Local Infrastructure Plans (or amendments to them) to the C Director-General of the Department of Planning and Infrastructure for review. 54. he Director-General may modify any such plan. T
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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.
Accumulated local infrastructure funds

57. reference is to be given to the Independent Pricing and Regulatory Tribunal to A 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.
Contributions appeals to the Land and Environment Court

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
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.
Funding for the Department of Planning and Infrastructure

62. evelopment application assessment fees for major projects and contributions to the D 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.
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Funding information technology in a reformed planning system

65. n consultation with local government, the Department of Planning and Infrastructure I 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 the T Planning Reform Fund) for the making of such grants.
Funding the Planning Commission

67. ufficient budget allocation is to be made for the Planning Commission to enable it to S fulfil the expanded role intended for it.
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.
Adjustment of development application fees

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.
Development contributions for Universities

74. niversity developments for student accommodation, teaching and research facilities U are not to be subject to development contributions except for drainage and traffic management works (at the development sites entrance).
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The Spatial Information Act

75. he Spatial Information Act be enacted covering certain classes of spatial information T 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.
The Sustainable Planning Act additional matters

Alternative community consultation processes
77. he best practice guidelines 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.
Alternative Decision-making processes

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.
Amendments to development proposals during assessment processes

79. he Sustainable Planning Act is to make it clear that any amendments made to T a 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. 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 the U 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 in F 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. 83. or merit assessable development, the additional notification period is to be 5 working F 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.
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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.
Architectural review and design panels

87. ouncils are to be able to establish specialist local advisory panels to deal solely with C architectural, urban design and/or heritage matters.
Assessing development proposed by public authorities

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
Assisting elected councillors in development decision making

89. he working group established to create a professional development program for T 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.
Availability of assessment reports

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 to I e-mail advising of the availability of the assessment report on the assessing authoritys website.
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Certification of code assessable development proposals

92. he Department of Planning and Infrastructure is to convene a working group drawn T 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 adoption T by the Minister for Planning and Infrastructure.

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.
Changes to Local Land-Use Plans

96. he processes for making changes to Local Land-Use Plans (other than the development T 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 clerical P or drafting correcting changes) are to incorporate public notification and consultation prior to adoption of such a change.
Conditions of development consent Categorising the elements of a development consent

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.
The use of template or default conditions of development consent

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.
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Trial periods for development consents

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.
Requiring security bonds as a condition of consent

101. onditions requiring security bonds are to be permitted by the Sustainable Planning C 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.
Public interest conditions

102. here is to be a specific statutory provision that permits a consent authority to impose T 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.
Definitions in the Sustainable Planning Act

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 Sustainable A 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. 107. definition of sustainable development is to be incorporated in the same terms as the A 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 development D set out in the modified Development Assessment Forum model described in Volume 1, Part C Chapter 6.
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Demolition limitations on development approvals

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 item of D 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 within T 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.
Determining development proposed by public authorities

115. etermination processes for public authority projects are to be as set out below: D Development Track Exempt Prohibited Code assessable Merit assessable 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
Development applications with minor code non-compliances

116. f a minor non-compliance causes an application to be merit assessable rather than code I 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.
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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.
Development to fit the exempt and code assessable classifications

119. ll development now classified as exempt or complying is to be categorised as exempt A or code assessable development. 120. single simplified list of these categories of development is to be compiled by a review A 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.
Existing uses: changes, expansion or intensification

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 use T 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 are to A 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
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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Independent Hearing and Assessment Panels

129. ndependent Hearing and Assessment Panels are to be provided for in the Sustainable I 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.
Independent Hearing and Determination Panels

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.
Joint Regional Planning Panels

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 the A 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 no W 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 the T Sustainable Planning Act through a separate provision in that portion of the legislation dealing with Joint Regional Planning Panels.
Land owners consent

139. ny development application involving any land owned by any NSW Crown entity shall A not be accepted by a consent authority unless accompanied by the written consent of the landowning NSW Crown entity.
Model delegations for development decision making in local councils

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, may T be modified to reflect local circumstances.
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Modifications to existing approved development

142. he modification process in the present planning legislation is to be carried over to T 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.
Names for applications to reflect purpose

143. pplications for development and for approval of construction plans are to be known as A application for development approval and application for construction approval.
Plain English guide to the classification of development

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 Advisory Board. P
Potential cross border impacts

146. hen a consent authority considers that a development proposal has the potential to W 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 to T any comments received in response to such a request.
Preamble to the Sustainable Planning Act?

148. he Government consider if there should be a preamble to the Sustainable Planning Act. T
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.
Removing consistency as a design criterion in assessments

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.
Stop the Clock Provisions

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 period T 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.
Verification of the stated development application values

162. or projects falling under the jurisdiction threshold of a Joint Regional Planning Panel, F 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 be I payable and the quantity surveyors fee is not to be offset.
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The Land and Environment Court additional matters

Hearing from objectors during conciliation processes
166. uring the conciliation phase of conciliation/arbitration proceedings, submitters are to D be able to explain their position but not take any other part in this phase.
Requiring concurrence authorities to defend their delay or refusal

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.
Costs orders application amendment during the appeal process

168. he costs provisions of section 97B of the present planning legislation are to be retained T but incorporated in the Land and Environment Court Act 1979.
Extension of orders able to be made in remedy or restrain matters

169. he Sustainable Planning Act is to give to 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.
Commissioners assisting Judges in Class 4 matters

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.
Class 4 matters and related common law issues

172. he Land and Environment Court Act 1979 is to be amended so that, in matters arising T 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 C civil jurisdiction.
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Revocation of development consents

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.
Challenges to validity of development consents

175. he right to challenge the validity of a consent is to be retained (with retention of the T present time limit and notification requirements).
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.
Councils additional matters

Council Order making generally
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.
Drafting precision for orders

181. he Sustainable Planning Act is to provide that an order shall not be invalid if, despite T any defects in its drafting, the intention of the order is clear from its terms.
Strict liability penalty notice offence false or misleading information

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 by T the Department and councils in their compliance and enforcement policies.
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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).
Environmental Impact Statements

Accreditation for those preparing an EIS or supporting studies
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).
Director-Generals requirements for Environmental Impact Statements

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 made A 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.
Reviews of Environment Impact Statements

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 more P than one aspect of the proposal. 194. or proposals by assessing authority other than the Department of Infrastructure and F 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 the W Chairperson of the Planning Commission to be dealt with on the papers.
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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.
Former Aboriginal reserves and missions

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 indicated I 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 F be 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 the T 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 completed, W 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
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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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.
Project identification on the Departments website

210. he Departments website is to include an interactive map to facilitate access to T information concerning all projects being assessed by the Department.
Other reform measures

Planning in the unincorporated area of the State
211. he Department of Planning and Infrastructure is to prepare a Local Land-Use Plan and T 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. 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.
Revitalisation of the Newcastle Central Business District

214. he Sustainable Planning Act to include particular provisions facilitating establishment T 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 to A be drafted in general terms.
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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.
Transferable development rights to agricultural land

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.
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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PART 1 The Planning Commission

Introduction
The current Planning Assessment Commission was established by amendments2 to the present planning legislation in 2008. From the time the current Commission commenced operation3, until the changes made by the present Minister in 2011, its primary roles were to: consider the assessment reports prepared by the Department concerning major development project proposals make recommendations concerning what decisions should be made about those proposals. At the time of the repeal of Part 3A of the present planning legislation in 2011, the present Minister said the following concerning the future role of the Commission:
The bill sets out revised functions for the Planning Assessment Commission. This includes any functions delegated to it under the Act and allows the Director General of the Department of Planning and Infrastructure, in addition to the Minister, to request the Planning Assessment Commission to provide advice, to review certain matters or to hold public hearings. The bill also amends schedule 3 to the Act to clarify that the chairperson is a member of the Planning Assessment Commission and that membership of the commission can range from four to nine members, including the chairperson. The bill also includes amendments to the membership of the Planning Assessment Commission so that members may not hold office for more than six years in total to strengthen the independence of the commission. The amendments also include allowing for Planning Assessment Commission members to be appointed on either a full-time or part time basis and allowing the Minister to change the basis of the appointment during the members term of office. With the establishment of State significant development and increased delegation of ministerial determination functions to the Planning Assessment Commission, there is a strong need to ensure that the membership and operation of the commission is optimal for undertaking its heightened role. The provisions relating to the Planning Assessment Commission membership and functions are part of a broader suite of measures to improve the transparency, independence and professional operation of the Planning Assessment Commission. Other measures will include providing more resources to assist the Planning Assessment Commission in carrying out its expanded role. As Minister I will require the commission to publish new operational procedures and protocols which outline how the commission will undertake its day-to-day functions in a more open and transparent way. Meetings where determinations of development applications are made will generally be open to the public to give opportunities to communities, local councils and proponents to address the Planning Assessment Commission directly. There will also be an increase in Planning Assessment Commission public meetings in rural and regional New South Wales, where there is significant community interest in a proposal. As well as making determinations in public and holding public briefing meetings for contentious proposals, the Minister for Planning and Infrastructure will still be able to direct the Planning Assessment Commission to hold an inquiry into a proposal by way of a full scale public hearing and report back to the Minister with the results of that hearing. In this case the commission
2 Environmental Planning and Assessment Act 1979, Part 2A, Division 2 3 On 3 November 2008
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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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The Chairperson of the Planning Commission

Under the present planning legislation, the Chairperson can be appointed on either a full or part-time basis7. Given the likely increased workload of the Planning Commission, we consider that it is appropriate that the Chairperson of that Commission be appointed on a full-time basis. The NSW legislation establishing the Workers Compensation Commission and the Administrative Decisions Tribunal provide that the head of each body should be a Judge8. As a consequence, for appointment to head either of these bodies, a person must first be appointed to judicial office. Holding judicial office is regarded as an essential element in demonstrating independence from the executive Government. We propose that this apply for the Planning Commission, with the relevant office to be as a Judge of the Land and Environment Court. This would necessitate the appointment of an additional Judge to the Court with immediate secondment of that Judge to the position of Chairperson of the Planning Commission. If this were to be the case, it would be appropriate to incorporate in the Land and Environment Court Act 1979 a provision similar to that contained in the Supreme Court Act 19709 that would permit any Judge of the Land and Environment 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. There are criticisms that members of the present Commission are too dependent on Ministerial approval for reappointment to their role with no checks and balances. Establishing a Chairperson with the tenure and independence of judicial office provides an appropriately measured response to these criticisms, when coupled with the appointment process for Commissioners discussed below. It would also be possible to rotate the Judges of the Court through the role of Chairperson of the Planning Commission at periods of three or four years, subject to the concurrence of the following people: the Minister administering the Sustainable Planning Act the Attorney General the Chief Judge of the Land and Environment Court. As rotation may occur as discussed above, the Judge selected to be appointed and seconded to the Planning Commission must 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. Responsibility for selecting the Chairperson of the Planning Commission, given that this person will require appointment as a Judge of the Court, should lie with the Attorney General to make a recommendation to Cabinet. This recommendation should be required to be with the concurrence of the Minister for Planning and Infrastructure. It is envisaged that, as with other appointments to the Court, the Attorney General would
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.
Commissioners of the Court may be members of a Planning Commission panel

Decisions given by the Planning Commission are to be generally analogous to those given by Commissioners of the Court in that they are not to be subject to appeal on the merits, but are to remain subject to appeal to a Judge of the Court on a question of law. For this reason, there may be occasions on which it would be appropriate to engage the particular expertise of a Commissioner of the Court in a hearing of the Planning Commission. As a consequence, with the concurrence of the Chief Judge and of the Chairperson, a Commissioner of the Court could 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). This is analogous to the position of Judges of the Land and Environment Court who can sit as Judges in the Supreme Court with the consent of the Chief Justice and of the Chief Judge of the Court. The Land and Environment Court Act 1979 should be amended to permit this to occur. It is not expected that this would occur frequently. If it were to occur, as a practical matter, it will be necessary to give sufficient advance notice of any request to the Chief Judge of the Court to ensure that the Court would be able to replace the seconded Commissioner with an acting Commissioner of the Court during the secondment. If a Commissioner of the Court were to take part in a Planning Commission determination process, the costs of the Commissioners participation would come from the budget of the Planning Commission. This would ensure that any replacement arrangements by one or more acting Commissioners of the Court could be effected without additional impact on the Courts budget.
Limit on the role of the Chairperson or seconded Court Commissioners

In our view, it is not appropriate for any member of a Court to have the role of investigating, reviewing and/or advising the Minister on any matter that the Minister might have referred to the Planning Commission. To permit this to occur would be to breach the doctrine of the separation of powers11. Therefore, the Chairperson or any seconded Commissioner of the Court should not perform such an advisory role.
Hearings and procedure

Holding public hearings
Presently, the Commission operates using procedures that are published on its website. There are three separate processes for the Commission dealing with a matter, as follows: determining the matter without any public engagement in the process conducting a public meeting when there are more than 25 submitters on the proposal holding a public hearing when the Minister directs that this is to occur.
11 hat underpins the Westminster parliamentary model, within which the Commonwealth and the Australian States T and Territories operate.
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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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Selection of the Planning Commission panel for a matter

Currently, matters that are considered by the Planning Assessment Commission are dealt with by a panel that is selected by the Chairperson of the Commission. Panels may be of one, two or three Commissioners. This process should be retained for the Planning Commission.
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.
The procedure at a Planning Commission hearing

The Planning Commissions processes must remain distinctly different from those of a Court. First and foremost, the process should be inquisitorial rather than adversarial14. There should be no cross-examination processes (whether by lawyers or agents if permitted or by any other participants) of those presenting information during hearings. It is to be the role of the Commission panel members to undertake the questioning of those participating. The rules of evidence are not to apply. Those presenting to the Planning Commission should be able to do so in an informal fashion without the constraints that would ordinarily arise in a Court where a distinction is drawn between evidence and submissions. Those participating should not be sworn in. Transcripts should not be taken of the proceedings although, with permission of the panel, recording might 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.
14 See Glossary
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Giving and publishing reasons for a decision

The Planning Commission is to give reasons for all its decisions. A decision of the Planning Commission should provide proper reasons why the decision has been made. The decisions shall be made public and, if not given at the end of the Commission hearing, shall be notified to all those who participated in the hearing and shall be published on its website. The reasons for a decision shall be sufficient to explain why the conclusion has been reached and why relevant objections, if any, have not been supported. The Planning Commission shall also give reasons why any modifications to the proposal or to proposed conditions to be attached to it have been made in the case of projects or modifications that are approved. Proper reasons why a development proposal is rejected (if this is the case) must also be given. All decisions should be expected to be given in clear and readily understood terms (as is the position for Land and Environment Court merit appeal decisions).
Power to determine matters arising under other legislation

Some development proposals require additional consents under other legislation, including the Native Vegetation Act 2003, the Roads Act 1993 or the National Parks and Wildlife Act 1974. Some of those consents require approval by a nominated consent authority that is not a council. In some instances, it may be that all concurrence comments and/or conditions from other government Departments will not have been given by the time a matter comes to be determined. We are of the view that all concurrence functions, no matter what the legislative provision that makes the approval necessary, should be vested in the Planning Commission when it makes a decision about a development proposal.
Appeals from Planning Commission decisions

Given that there is to be a clear, open and transparent process for the Planning Commission (incorporating both a right to be heard and a duty to provide reasons for any decision), it is unnecessary to provide for a merit appeal decision against any decisions made by it. In this respect, the Planning Commission outcomes will be analogous to those of a merit determination made by Commissioner or Judge of the Land and Environment Court. The Commissions procedures (inquisitorial not adversarial) will still embody the appropriate range of procedural protections to ensure that natural justice and due process requirements are observed. As a consequence, appeals on questions of law should be 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)15.
15 Land and Environment Court Act 1979, section 57A
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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.
Provision of information about the Planning Commission

Currently, the Planning Assessment Commission provides a limited range of information on its website to assist with broad understanding of its processes and activities, including: a guide for access to information17 a code of conduct18 for members of the Commission a guide to procedure for decision-making19 a list of matters20 dealt with by the Commission with links to information about them. There is no comprehensive plain English guide to the activities and processes of the Commission. This is to be contrasted with a comprehensive guide to the processes of the former Commissioners of Inquiry titled, How They Work21. In order to assist the process of restoring public faith in the planning system, particularly in regards to major project determination, we consider it essential that the Planning Commission prepare and publish a step-by-step guide to its processes from how a matter comes into its remit to how a decision is a made, publicised and its effect.
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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Timing of introduction of the Planning Commission Act

There is an option to take the Planning Assessment Commission and transform it into the Planning Commission under its own legislation before the other legislative elements of the reform package come into operation. This would provide greater transparency and accountability for the decision making process about major project proposals dealt with under the present planning legislation (pending its repeal and replacement with the Sustainable Planning Act).
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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PART 2 The Minister, Director-General and Department

The role of the Minister
Currently, the Minister for Planning and Infrastructure (or the Ministers delegates) acts in a range of roles within the planning system, they are: to approve Local Environmental Plans or changes to them to intervene in, remove or modify powers of councils regarding planning matters under the present planning legislation to remove particular development proposals from the jurisdiction of a council and refer them for central determination because of their significance to the State, which results in the decision about such a project being made centrally to give instructions for the preparation of regulations and their content, to give detailed effect to the legislation ancillary powers (such as referring some fisheries projects to the Planning Assessment Commission for investigation and report22). Some of these roles might be regarded as uncontroversial. Others, such as the call in power and the power to approve major projects, have dominated public debate about the planning system in recent years. However, this debate was largely defused in 2011 by the repeal of Part 3A23 of the present planning legislation and by the present Minister referring matters to the Planning Assessment Commission for determination or returning projects to councils to decide.
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
41
The Minister, Director-General and Department
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.
The role of the Director-General

The Director-General of the Department of Planning and Infrastructure performs three important functions as the delegate of the Minister. These should be carried over into the Sustainable Planning Act: setting out the requirements for the preparation of Local Environmental Plans (to be called Local Land-Use Plans), including for gateway proposals to rezone land giving directions and establishing the framework for preparation of environmental impact statements giving concurrence to an application by a development proponent to be able to breach a development standard. The powers of the Director-General are able to be delegated to officers of the Department. With the exception of the power25 to agree to approve applications for zone flexibility in industrial zones, we do not propose removal of the power to delegate to a council the grant of concurrence to an application to breach a development standard contained in the local plan.
The role of the Department

During the consultation process and in submissions to the Issues Paper, two major themes emerged that were critical of the role of the Department of Planning and Infrastructure:
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.
The Departments regional roles

The Department should have a significant role in building planning capacity within regional and rural local government, in two distinct ways: through secondments to improve the capacity of councils whose own resources do not permit sufficient senior staff to meet peak planning demands (particularly strategic planning demands) establishing a training program for younger planning professionals that embraces councils, particularly those in rural or regional areas. Neither of these programs needs to encompass large numbers of either qualified or trainee planners. As a consequence, the cost should be comparatively modest, even taking into account the fact that there will be travel and living away from home costs associated with its implementation. Given that we propose a shift in emphasis in the role of the Department, it is also appropriate to examine the spread of the Departments regional presence. We do not consider that there needs to be a major expansion either in staffing or location of the Departments regional offices. However, the single gap that we have identified that warrants expansion is the Departments present method for servicing the south-west of the State. This should be remedied by opening a small office (with a maximum of two professional staff and one support staff ) based in Wagga Wagga to service councils to the west of the ACT and into the Riverina. This office should be a satellite of either the Dubbo or Wollongong regional offices. A matter of concern is the present cost to councils, particularly in the Riverina, to travel via Sydney to attend meetings at their regional office in Dubbo. It was suggested to us that insufficient use was made of alternative web-based conferencing processes or the option of holding meetings in Sydney. Greater utilisation of telephone and web-based conferencing tools instead of face to face meetings should assist in cost reductions.
26 See Volume 1, Part C, Chapter 4 from page 43
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The Minister, Director-General and Department
Recommendations
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.
The compliance role of the Department

Currently, the Department of Planning and Infrastructure has a limited compliance role27 principally confined to small teams located in Sydney and Singleton (to service the Upper Hunter established recently in response to concerns about the cumulative impacts from open cut coal mines28). We understand that the rationale for the compliance activity in the Upper Hunter being undertaken by the Department (rather than by councils and/or the Environment Protection Authority) is that the Department had undertaken the assessment for many of the mines and that the approvals granted and conditions attaching to them were made by the Minister, rather than by the local council. We do not have a proper basis upon which we could conclude, either as a matter of general principle or for other specific reasons, that the Department should undertake an expanded compliance role. However, there may be an appropriate basis for this, particularly as a consequence of further intensification of major project approvals in other regions. We are satisfied that this is a matter that can be addressed as a matter of policy as required in the future. Because of this, it is desirable that the Sustainable Planning Act permit the imposition of a compliance cost levy on such projects. This will permit future policy consideration as to whether the provision should be triggered, including for the costs of the present Singleton operation.
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.
44
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
PART 3 Financial Matters

Local infrastructure funding
Deriving local contributions
We consider that it is desirable to retain the three present methods for deriving contributions to provide local infrastructure, as follows: 1) Planning Agreements (or Voluntary Planning Agreements)29 2) Local infrastructure contributions30 the dedication of land free of cost or the payment of a monetary contribution (or both)31 a fixed development consent levy32 3) Special infrastructure contributions33.
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.
Accountability and planning agreements

During the consultation and submission process, there was a degree of cynicism, expressed across the spectrum, about whether Planning Agreements are truly voluntary and the cost and transparency of the process for making them. Amendments to the present planning legislation in 200834 that have not come into effect included a Schedule35 containing provisions which remain an appropriate response to these concerns. We recommend that these be incorporated in the Sustainable Planning Act. This is supported by the Independent Commission Against Corruption36. In addition, we consider it desirable to require an assessing officer considering whether to recommend acceptance of the terms of a planning agreement, or any decision making body that is determining whether or not to enter into such an agreement, to consider any submissions received during the notice period of the proposed agreement.
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.
Content of Local Infrastructure Plans

As discussed above, sections 94 and 94A of the present planning legislation enable local councils or other consent authorities to levy contributions for public amenities and public services required as a consequence of development. The Sustainable Planning Act will rename these contribution plans as Local Infrastructure Plans to reflect more accurately their function. Such plans may be in several Parts (reflecting the available options for such funding), but will form an element of the relevant Development Control Plan in the unitary planning document for the local government area37 (discussed below). In their submission to the Issues Paper, the Independent Pricing and Regulatory Tribunal proposed that a general reference be given to it regarding the process of listing works as necessary local infrastructure in contribution plans (to be called Local Infrastructure Plans), funded through the mechanisms we have described in this Chapter. The Tribunal said38:
D96. Should IPART be given a reference to make recommendations about what should be the extent, standard and nature of community infrastructure works that should be included in contributions plans? Yes, IPART supports the Government giving us a general reference to make recommendations about the extent and standards of community infrastructure that should be included in contributions plans. The Department of Plannings 2010 Practice Note specifies an Essential Works List. This list applies when the maximum contributions rate in a plan exceeds the applicable cap, and the council is seeking funding from the PIF or a special rate variation. There is no restriction on the type of facilities within a contributions plan if the contributions rate is below the applicable cap. The Essential Works List appears to have been established with little discussion or debate. If IPART is given a general reference to make recommendations about the extent and standards of community infrastructure that should be included in contributions plans, our advice would be based on submissions from stakeholders and the general community. We consider this would be best done within the context of a broader review of infrastructure funding.
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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Financial Matters
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.
Accumulated local infrastructure funds

Although we are not able to provide a precise quantification of the extent to which councils are holding unspent monies from raised local infrastructure contributions, we understand anecdotally that this is likely to be a significant sum, possibly in excess of $800 million. Councils have a degree of flexibility about the sequencing of expenditure and application of monies, provided there is proper accounting for this across the range of projects for which the money has been raised. However, as part of the reference to the Tribunal, it should be asked what additional processes might accelerate expenditure of this accumulated money. If a more timely method of expenditure is available to bring forward projects, significant short term stimulus to the States economy may result. It may also be appropriate to involve the Auditor General in a selective programme of examining those councils with significant accumulated reserves collected for local infrastructure funding. The purpose would be to ensure that any recommendations of the Tribunal about more timely expenditure of accumulated funds are being implemented appropriately.
39 See Volume 1, Part E at pages 117 to 119
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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.
Contributions appeals to the Land and Environment Court

Presently, when a condition of development consent imposes a developer contribution, there is a right of appeal to the Land and Environment Court for a merit review40 in relation to the following: the reasonableness of a contribution levied on a development the reasonableness of elements within the schedule of identified works needed as local community infrastructure.
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
49
Financial Matters
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.
Funding for the Department of Planning and Infrastructure

To enable proper implementation of the reforms, it is necessary to provide an appropriate budgetary base for the Department of Planning and Infrastructure and fund implementation of a reformed electronic planning system (incorporating e-planning and easy public access to planning information). For 2010-11, the Departments total expenditure was $130.6M (including grants of $22.5M) leaving $108.1M for the Departments operating costs. Currently, a significant element of the funding of the Department comes from development proposal application fees paid to the Department for assessment of major project proposals. This money is paid to the Department and retained by it to defray operating costs. The total sum received in 2010-11 from major project application fees was $20.4M. The second significant source of funding for the ordinary activities of the Department comes from the Planning Reform Fund constituting a levy42 on development applications with a capital investment value of $50,000 or more. The money is collected by councils/ consent authorities and remitted to the Department monthly. In 2010/11, the Fund received $22.4M. Approximately 5% is redistributed to councils as grants for improving planning processes. The balance of the revenue is used for strategic planning activities throughout the State, including the costs of regional offices and preparation of Standard Instrument Local
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.
43 See http://www.metrostrategy.nsw.gov.au/ 44 See Volume 1, Part E at page 116
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Financial Matters
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.
Funding information technology in a reformed planning system

In order to implement the reforms that we propose, information technology will need to be integrated comprehensively into the planning system45. This will involve the introduction of electronic planning for the lodgement and assessment of applications for development and ongoing data quality improvement so that the information can be made accessible to the public through a comprehensive planning portal. This will constitute a significant additional cost for the Department and councils over the next decade. It is unreasonable to expect that these Departmental and council costs could be met from within present revenue streams. As a consequence, in addition to examining the way the Department is funded, it is important to consider the ways in which a comprehensive electronic planning system can be funded.
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.
45 See Volume 1, Part G and this volume, Part 4
52
Funding the Planning Commission

In 2010/2011, the Planning Assessment Commissions running costs were approximately $2.9M. An increased workload has already resulted from the policy decision of the present Minister for Planning and Infrastructure to delegate determination of major project matters to it. We propose public hearings will be required as part of all the Planning Commissions determination processes. This means that there are likely to be increases in the costs of running the Planning Commission, compared to the present Planning Assessment Commission. In addition, a modest increase in budgeting will be required for the Planning Commission to provide for a full-time Chair and the possibility of one or two full-time members, along with the potential need to expand the skill base of the part-time Commissioners.
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)
53
Financial Matters
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.
Development application fees

Adjustment of development application fees
Development application fee scales payable to councils are set by regulation49. Between 2000 and 2010, some fees were not adjusted, necessitating an approximate 25 per cent increase in late 201050. There was a common complaint from councils that development application fees did not cover the costs of the development assessment and determination process, with the shortfall coming from general council revenue. We regard this as unreasonable, as these fees are designed to be user-pays. Equally, we do not consider that these fees should be unregulated, nor that control over their levels should be removed from the State government. To establish whether the present funding base is adequate for the tasks that it is expected to support, it is appropriate that there be a short, limited enquiry by the Independent Pricing and Regulatory Tribunal into the present fee scales. The terms of reference should be confined to determining whether or not there needs to be an immediate, one-off adjustment to the development application fee scale to provide a proper basis for the councils roles in a reformed planning system. While ever a general rate capping policy remains, we consider it appropriate that the base adjustment percentage should also be reflected in development application fee scales, as an automatic percentage adjustment. If there were to be a change in the present rate capping adjustment process, an alternative mechanism to provide annual adjustments to council development application fee scales would also need to be established.
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.
Development contributions for universities

Universities are not-for-profit institutions that are funded, in the majority, by government. The levying of development contributions by consent authorities when universities are undertaking development for the purposes of providing student accommodation, teaching and research facilities diverts funds from providing new or upgraded facilities. Because of this, development undertaken by universities for student accommodation, teaching and research facilities should not be subject to development contributions (other than for drainage and traffic management at the development sites entrance) as those funds could be used towards the provision of necessary infrastructure to improve educational outcomes, attract quality students and staff and allow Australian universities to compete in the international education market. This is in line with both the Departments Circular D6 of 1995 and the Development Contributions Practice Notice of 200551.
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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PART 4 The Spatial Information Act

Introduction
Currently, no coherent legislative framework exists for: the sharing of government-held spatial information both between government agencies52 and between agencies, industry and the community improving the quality of government-held spatial data reducing the existing duplication associated with managing spatial resources facilitating public access to appropriate classes of government-held spatial data. Reform of the planning system now provides a catalyst for enactment of legislation the Spatial Information Act to resolve these problems53. One of the most important features of access to spatial data dealt with by this legislation will be the creation of a geoportal54 where key government spatial datasets can be accessed by other government agencies and members of the public.
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.
Co-ordinating committee for spatial information

The Spatial Information Act will establish a co-ordinating committee to submit recommendations to the Minister for Finance and Services on initiatives to promote infrastructure for spatial information in New South Wales and to assist the Minister with the implementation and use of these initiatives. It will also determine custodianship arrangements for and the number of register(s) of development consents.
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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Responsibility for preparation of the legislation

The preparation of the Spatial Information Bill should be the responsibility of the Department of Finance and Services to ensure that the Spatial Information Act is consistent with the NSW governance framework for Spatial Data Infrastructure.
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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PART 5 Integrity in the planning system

In the introduction to Volume 1, we noted the broad lack of trust in the community in the operation and integrity of the present planning system. We noted that we had received a submission60 by the Independent Commission Against Corruption in response to the Issues Paper that made sixteen recommendations for improving the integrity of the system. Because of the importance of restoring public confidence in the planning system, we set out below how we have responded to each of the Commissions recommendations: ICAC Recommendation 1 That the NSW Government ensures that discretionary planning decisions are made subject to mandated sets of criteria that are robust and objective. NSW Planning System Review Response The present mandatory considerations for decision makers be reviewed for clarity and relevancy, including an assessment of cumulative impacts and public benefits. See Volume 1, Part C, Chapter 9 Recommendations 73 and 75 As well as general objects for the Sustainable Planning Act, there will be a separate set of process related objects. See Volume 1, Part C, Chapter 3 Recommendation 7 ICAC Recommendation 2 That the NSW Government makes it mandatory that major strategic policy documents are considered during the making of planning instruments. NSW Planning System Review Response Local Land-Use Plans must be consistent with strategic plans applying to the land that is the subject of the Local Land-Use Plan. Further, the separate objects for the preparation of Local Land-Use Plans must include that the plan must implement any strategic plan adopted covering the local government area. See Volume 1, Part C, Chapter 4 Recommendation 11 In order to facilitate the Department of Planning and Infrastructure to obtain a wholeof-government approach to strategic planning, the Sustainable Planning Act will contain a duty to cooperate that will apply to all councils and agencies of the State (to be defined by regulation) that are involved in infrastructure, resource management and service provision within the relevant boundaries of the plan. See Volume 1, Part C, Chapter 4 Recommendation 9
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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Integrity in the planning system
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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PART 6 The Sustainable Planning Act additional matters

Introduction
In Volume 1, we set out the broad framework for the Sustainable Planning Act. The following sets out further matters that relate to the legislation.
Alternative community consultation processes

It is important that those undertaking both strategic and detailed land-use planning seek to engage the community in the development of plans, rather than merely consulting them about a draft plan or a limited range of options for a plan. A range of further possible methods can be used during consultation processes both for the development of plans and for seeking public response to drafts of them. Potential options to go beyond most commonly used current consultation measures include techniques such as: charettes (a collaborative approach to designing drafts) citizen juries professionally conducted focus groups (using proper sampling techniques).
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.
Alternative decision-making processes

In the context of development proposal assessment and determination, we have recommended a range of processes that would permit local consent authorities to delegate some or all decision making powers to a local expert panel63. We recommended, in Volume 164, that councils have the right to be able to refer contentious matters to a Joint Regional Planning Panel for determination. It has also been proposed to us that alternative decisionmaking processes, such as citizen juries, might have a role in development determination processes. In this context, we have considered whether there might be a place for such more experimental decision-making processes in the Sustainable Planning Act. We are of the opinion that councils wishing to experiment with alternative decision-making models should have the ability to do so.
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.
Amendments to development proposals during assessment processes

Clearly, it is desirable that a development proposal is able to be amended during the assessment process in order to respond to matters of concern. We have proposed the amber light approach to encourage those undertaking assessments to suggest amendments that would render a proposal acceptable65. However, the nature, extent and timing of amendments are of considerable importance for development that falls within merit or impact assessable development. To a lesser extent, amendments to code assessable development require consideration, as discussed below. The present planning system imposes some restrictions on the scope of amendments that are permissible. The Sustainable Planning Act should contain provisions to clarify the amendment process the test being that which currently applies to applications to modify an existing development consent66.
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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Amendments to code assessable development

For code assessable development, we have recommended that the application must be provided to neighbouring property owner and/or occupiers prior to the application being made. As a consequence, any amendments to a code assessable application will require a copy of the amendments to be provided to the occupants of neighbouring properties unless: in the opinion of the assessing certifier, the amendments are minor, or the assessing certifier is satisfied that the amendments are being made after consulting with the owners and/or occupiers of neighbouring properties and obtaining their agreement.
Amendments to merit assessable and impact assessable development

For merit assessable and impact assessable development proposals, the degree of amendment will also influence the process. The amendments may not be minor amendments in the opinion of the assessing officer. In this case, they will be required to be subject to a further notification period (or an extension to the notification period if the amendments are made during the original notification period) to permit public participation with respect to those amendments. As the extent of the amendments that are able to be made is limited by the test that we have recommended above, we do not consider that the original notification process will need to be repeated, requiring extensive additional time. For merit assessable development, we consider that an additional 5 working days would be appropriate whilst, for impact assessable development, an additional 10 working days would be appropriate each time amendments are proposed. Where amendments result in extensions to the notification period, a similar extension should automatically be apply to the mandated period for determination.
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.
Architectural review and design panels

The present planning legislation permits the establishment of an Independent Hearing and Assessment Panel constituted by architecture, heritage or urban design experts. However, there is no specific provision in the present planning legislation permitting establishment of any advisory bodies to consider broader policy matters of this nature. There should be the ability for a council to establish such broader-scoped advisory bodies.
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.
Assessing development proposed by public authorities

A reformed planning system needs to ensure that development undertaken by or on behalf of a public authority for public purposes is appropriately assessed and determined. Currently, a separate Part67 of the present planning legislation applies to some development undertaken by public authorities. These bodies include State government departments and instrumentalities, local government, State owned corporations or other statutorily created bodies such as universities. This Part allows these bodies to undertake self-assessment and determination of proposed developments. This has meant that, in practice, these activities have been largely outside the scrutiny of development proposal assessment and determination requirements of Part 4 of the present planning legislation. The range of developments undertaken by public authorities is very wide. It ranges from maintenance activities for existing facilities through to large scale projects such as new hospitals, schools and road projects. For smaller scale projects, the present process has generally been uncontroversial. For larger scale projects, however, councils and community organisations have argued
67 Environmental Planning and Assessment Act 1979, Part 5
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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
68 See Volume 1, Part C, Chapter 6
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Assisting elected councillors in development decision making

It is essential that councillors understand their policy-setting role. It is a role that can reflect philosophic and ideological matters relating to development patterns within their local government area, provided they are consistent with strategic plans, State controls and the Local Land-Use Plan. Decisions about individual development proposals must be made in a proper fashion within that framework and not on a purely populist or political basis, unsupported by such a framework. Three NIM factors have been described as having a pervasively negative cultural impact on local decisions. They are: NIMBY not in my backyard NIMCA not in my council area, and NIMTOO not in my term of office names given for the rejection of proposed developments without proper planning reasons for doing so. Decisions made without a proper planning foundation have three significant negative impacts: It is often clear that a project will be appealed to the Court and inevitable that it will be approved on appeal. The effect is expensive blame shifting to the Court. This exposes the council and its ratepayers to significant legal costs defending the council decision. Indeed, in some cases, a costs order may be made in favour of a successful proponent. There may also be a significant additional cost incurred for an external consultant planner (and possibly other experts) who are prepared to provide evidence in support of the elected councils position where it is contrary to the position taken by the councils professional staff. It can have a significant impact on the culture of the planning staff of the council. It may cause council staff to feel a sense of frustration that their professional recommendations are rejected. Equally damaging, it may encourage staff to write assessment reports to justify the anticipated desired political outcome, rather than take a proper planning approach to the proposed development. The more frequently that elected councils depart from proper planning decision making, the more likely it is to become a self-reinforcing process. An expectation is created in the councils constituency that decisions on controversial matters will be made in response to community sentiment rather than on a proper planning basis. It is not only ratepayers who are exposed to significant legal expense in these situations. Development proponents are exposed, not only to the significant expenses of litigation, but also to the likelihood of additional holding costs occasioned by the delay. These costs act as a significant economic drag on the construction and development industry. Although there are risks in giving elected councillors the right to choose to be involved in development decision-making, we have concluded, on balance, that it is not appropriate to remove that role. However, it is essential that councillors have a proper understanding of the legislative framework of the planning system. It is also vital that they are aware of the confined and appropriate bases on which they are entitled to make decisions about development proposals.
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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.
Availability of assessment reports

Currently, the practice of councils making available assessment reports on development proposals varies widely. The only statutory requirement is that such reports have to be available on request70. We consider that this is an unsatisfactory position. We are aware of the possibility that imposing a mandatory time period for making such reports available may extend decision-making times but, where there have been public submissions objecting to the development proposal, we think that this is not unreasonable. We consider it appropriate that, if there have been public objections lodged to a merit assessable or impact assessable development proposal, the assessing body should be obliged to make the assessment report available on its website at least one week prior to any determination being made about the proposal. If submitters have registered an e-mail address for electronic contact, the assessing authority should be obliged to e-mail them advising that the report is available.
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.
Best practice guidelines for plan development

A wide-spread community complaint was that past and current plan development processes were usually top down. As we observed in the prologue to Volume 171, strategic planning is to be a bottom up process. A similar position must also apply to development of Local Land-Use Plans and Development Control Plans. To promote this significant shift in emphasis, guidance on what are the best practice options for community engagement at the earliest opportunity in the plan development process (of whatever type of plan) is essential.
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.

A private certifier can grant consent to a code assessable development proposal, subject to designated conditions. One of the major criticisms of the private certification process arising during the community forums was that there was an incentive for a private certifier to approve such an application because of the benefits that would flow from undertaking subsequent certification inspections. We are of the view that there is a significant risk of a genuine perceived conflict of interest (or apprehension of bias)72 in this circumstance. To prevent this, a private certifier (who grants such a consent) should be prohibited from
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.
Changes to Local Land-Use Plans

Currently, all proposed changes to local plans are known as planning proposals whether they relate to changes in zoning of land or changes to other details of local plans (such as amending controls in the plan or listing a new item of local heritage significance). It is necessary that statutory implementation of a simplified system for rezoning73 should be separated from other processes for changing local plans. The rezoning process, particularly site-specific rezoning processes which may result in an intensification of development, are significantly different from proposals that change other details in a local plan. Our rezoning process will encompass a Joint Regional Planning Panel process and make provision for public involvement in and a right to be heard on any such proposal. Other changes should be separated from this rezoning process. Whilst it should be possible for councils to initiate minor non-rezoning changes to local plans through a simplified process, this also needs to embody a right for the local community to be heard on the proposed changes (except those that are purely clerical or corrective of drafting defects74).
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.
Conditions of development consent

Categorising the elements of a development consent
Some conditions applying to development consents relate to rights and obligations that are enduring. Some, however, impose temporary obligations that only apply during construction for the proposed development. Conditions generally fall into three categories: conditions that approve use of land conditions that regulate construction or preparation activities that are necessary to permit the use to be undertaken conditions necessary to regulate ongoing activities associated with the permitted use. We have recommended establishment of an online register of development consents75. This will mean that, over time, a development history can accrue for a parcel of land. To assist this, there needs to be a standard layout for grouping conditions of development consent into these three categories.
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.
75 See Register of consents in this Part below
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The use of template or default conditions of development consent

Developing template or model conditions of consent means that they can be adapted to apply to a range of development classes, as follows: conditions of consent for code assessable development minimum or default conditions for when a development proposal is referred to a concurrence authority for comments and/or draft conditions of consent and a timely response is not provided conditions for major projects that can be adapted to the circumstances of the individual project. We are aware that the Department of Planning and Infrastructure has recently published some draft model conditions for projects falling in the final category above.
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.
Trial periods for development consents

Currently, it is not unusual (particularly for licensed premises and/or entertainment venues) to have a trial period imposed as a condition of consent. This is not generally controversial, if matters such as the location or current amenity impacts make it desirable. The trial may relate to the use generally or to a particular aspect, such as hours of operation. However, some plans76 appear to envisage an open ended rolling series of trial periods, without a final determination being made about the appropriateness of the application or the trialled aspects of it, if the application relates to trading hours or the like. We consider it appropriate that a point of finality should be reached in the consideration of any development. Development approvals are important property rights that run with the land and an applicant is entitled, eventually, to have a final determination made about a proposed development. Although there should be the possibility of a number of extensions to trial periods (to take into account circumstances that arose during the course of the original trial) the number of occasions for which this can be required and the maximum period of time for which trial periods can be required should be fixed. After the expiry of that maximum period, the consent authority should make a final determination that is, if necessary, able to be appealed in the Land and Environment Court.
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.
Requiring security bonds as a condition of consent

The present planning legislation permits consent authorities to require security bonds to ensure that any damage caused to public infrastructure as a result of development will be paid for by the development proponent. The Land and Environment Court has held77 that a consent authority may not require a security bond for any other purpose. However, in our view, it is desirable for consent authorities to be able to impose security bonds for other purposes. Similar bonds are imposed in spheres of development activity that are regulated by other legislation, for example, under the Mining Act 1992 security bonds can be imposed for rehabilitation costs. An extended ability to impose bonds should not be permitted for code assessable development or for other minor developments. If conditions are to be imposed that require security to be provided, the power needs to be clearly defined and limited. We envisage that this power would only be permitted where failing to comply with development consent would result in a public authority or a neighbouring landholder having to pay for rectification/remediation costs. The consent authority must be able to demonstrate that there is a real and substantial risk of non-compliance before it would be possible to impose such a condition.
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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Public interest conditions

We set out in Volume 178 the three tests (known as the Newbury test) that apply to determine whether a proposed condition of consent can validly be applied to a proposed development. The second test requires that there be a nexus between the development and the condition. In our Issues Paper, we canvassed the possibility that there might be a need for broader public interest conditions imposed on a particular development despite the second Newbury test nexus requirement. An example of this might (and we only postulate might) be the imposition of a condition of consent on a wind farm that requires a community compensation scheme to provide facilities for a broader (but still local) community. We are aware of a number of cases where such a condition has been accepted by the windfarm project proponent. In order to remove any possibility of doubt that such conditions can be imposed, we consider that it is desirable to provide a legislative basis to make such public interest conditions permissible. Whilst we expect that the range of matters where it would be appropriate to impose such a condition will be small (and we would expect that the appropriateness of doing so would be self-evident). Providing for this is a small but desirable reform.
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.
Definitions in the Sustainable Planning Act

Introduction
One of the aspects of the Standard Template instrument process that was the subject of wide, favourable comment during the community consultation process was the use of a dictionary with uniformly defined terms. This, it was felt, had the potential to limit opportunities for litigation on such issues. Further, little complaint was made in submissions in response to the Issues Paper expressing dissatisfaction with the definitions in the present planning legislation.
78 See Volume 1, Part C, Introduction to Chapter 11
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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.
The public interest

As a consequence of the decision of the Court of Appeal in Terrace Tower Holdings Pty Limited v Sutherland Shire Council81, the range of matters that may be taken into account in considering the public interest when assessing or determining a development proposal is very wide. However, it is also clear that the scope of matters that may be taken into account in considering the public interest is broad but is still not entirely unconfined in that there would have to be provided a properly enunciated basis upon which a particular factor was taken into account. We are of the view that to attempt to define the public interest in a fashion that sought to codify the range of sources or types of documents able to be considered would be to impose an irresponsible restriction on an assessing or determining authority. By way of example, any definition of the public interest drafted in the 1950s (but still applicable 30 years later that being the lifespan of the present planning legislation) might well have excluded asbestos-related impacts because the state of knowledge in the 1950s. A similar position might well have arisen in the 1970s about the public health impacts of passive inhalation of tobacco smoke. It is inevitable that similar circumstances are likely to arise in the future if we attempt to codify what constitutes the public interest for assessing or determining a development proposal. As a consequence, we have decided that it is not appropriate to do so, as the assessing body needs to consider this issue against the then current societal norms and the state of scientific knowledge at the relevant time.
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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Defining development classifications

The adoption of a modified version of the Development Assessment Forum model86 of classifications of development means that these development types will need to be defined in the Sustainable Planning Act.
A dictionary in the new legislation

The present planning legislation incorporates most statutory definitions in a clause at the beginning of the legislation87; however, other definitions are scattered throughout it. Contemporary drafting practice places all definitions in a dictionary at the end of legislation. This is a sensible approach and should be adopted in the Sustainable Planning Act.
Cross-referencing definitions contained in other pieces of legislation

A number of the definitions in the present planning legislation merely adopt definitions that are found in other Acts. For example, the definition of owner is to be found by referencing the definition of owner contained in the Local Government Act 1993. If the definition in this Act is changed, the definition in the present planning legislation also changes. Currently, electronic cross-referencing from the definition of owner in the present planning legislation merely takes the reader to the contents page of the Local Government Act 1993. The reader is then left to navigate around that legislation; find the dictionary which is located at the end of that Act; and then find the definition of owner in that dictionary. This is not a user-friendly method. Given the advent of modern technology, changing a definition shared by more than one piece of legislation, if reproduced in full in each enactment (rather than by cross-referencing), is not a difficult process. As the majority of use of the Sustainable Planning Act is likely to be electronic, there is no reason why all definitions contained in the dictionary to the new legislation should not be spelt out in full. If any parent definition were changed, this could automatically be made in the Sustainable Planning Act.
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.
Demolition limitations on development approvals

During the community forums and in submissions to the Issues Paper, concerns were raised about the extent of demolition permitted under what is currently complying development. We consider that most matters of what should be included as exempt or complying development should be dealt with as part of the recommended broad review88 of exempt or complying development. However, we do propose two specific changes: Currently, clause 136E of the regulation89 to the present planning legislation include mandatory conditions for bonded and friable asbestos removal, which requires its safe handling and removal by a licensed contractor under the Occupation Health and Safety Regulation 2001 and in accordance with the applicable Australian Standard. This should be carried over into the Sustainable Planning Act. However, often people with the benefit of an approval under what is currently complying development do not know of the existence of asbestos until demolition commences. Because of this, we propose that a notice be included in all code assessable development 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. Demolition of items being assessed by council for local heritage significance are to be merit assessable, if the owner of the item has been given written notice of the investigation.
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.
Determining development proposed by public authorities

Smaller scale developments
Smaller scale code assessable development is to be self-determined by a public authority. No third-party merit review rights are to apply. Any approval of this type will be required to be included in the register of development consents. Small-scale merit assessable development that requires dispensation from a development standard should be determined by a Joint Regional Planning Panel. The same limited third party appeal rights would apply as for any other dispensation to a development standard.
Intermediate scale public authority projects

No distinction between a public authority and the private sector should apply to development determined by a Joint Regional Planning Panel. However, for such intermediate scale projects: the notification, display and assessment processes should remain in the hands of the proposing entity conditions of approval should be drafted, but not determined by internal processes.
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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.
Intermediate scale public authority projects crossing council boundaries

If intermediate scale projects cross local consent authority boundaries, then: local representation on any Joint Regional Planning Panel must include representatives from both councils (if two are involved) or representatives from different councils settled by all councils involved (if there are more than two) if there is disagreement, all the councils should be required to nominate their proposed participant for the convening of such a panel. The Minister for Planning should select the two who are to form the local representative component on the panel.
Large scale public authority projects

Some development proposed by public authorities will appropriately be categorised as impact assessable development. Modestly90 scaled development of this nature should remain with the public authority for assessment. However, it should be subject to the same public notification and comment process that would apply to private development. These projects are, however, to be determined through the Joint Regional Planning Panel process. Projects of a major scale should be subject to the same independent scrutiny as private developments of a similar scale. Any public project91 that falls within State significant infrastructure will be assessed by the Department of Planning and Infrastructure and determined by the Minister. However, these projects will then be referred to the Planning Commission for their conditions of consent to be reviewed. Finally, there may be proposals by such entities where the Minister considers that the project is of sufficient significance that broader State matters need to be considered. In such circumstances, the Minister will be able to refer such projects to the Planning Commission for determination.
Internal approvals and the register of consents

Where development approval is internally determined, the approval and conditions attaching to such development should be treated as a development consent in order to ensure that it is available publicly on a register of development consents92. In addition, the relevant local consent authority(ies) is to be notified that the consent has been placed on the electronic register.
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
Development Track Exempt Prohibited Code assessable Merit assessable
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
Development applications with minor code non-compliances

There are likely to be instances when a development proposal has some minor aspects of non-compliance with a code that will not permit it to be dealt with as code assessable. In such cases, if the assessing officer considers that the departures are minor, the matter can be expedited by being dealt with in one of two ways (as considered appropriate by the assessing officer): first, if the non-compliance is readily able to be remedied by a minor amendment that would render the proposal able to be code assessed, the assessing officer should contact the proponent and suggest amendment of the proposal in a fashion to make it compliant. second, the assessing officer should simply consider the acceptability or otherwise of the element that is non-compliant, rather than assessing the overall nature of the proposal.
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.
Development to fit the exempt and code assessable classifications

Currently, simple stream development proposals are classified as exempt or complying development. The types of development that are contained in each category are set out in several State Environmental Planning Policies. Simplifying the list of exempt and complying development and permitting local variations to it is desirable. It will be necessary to develop a consolidated list of such development types by categorising them into the two classes of exempt and code assessable development types in the new development classification model that we have recommended. We recommend this be achieved by a review undertaken 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). Development in these categories is to be listed as an appendix to the relevant Local Land-Use Plan. Local variations to classifications as exempt or code assessable development are to be permitted.
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.
Existing uses: Changes, expansion or intensification

Uses of land can be non-conforming, either for historical reasons or because of changes in zoning, and, therefore, rely on existing use rights for their continuation. This section deals with: whether changes should be permitted to the nature of an existing use whether there should be a right to intensify an existing use within its footprint whether it should be possible to expand an existing use right beyond its footprint.
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Changes to the permitted nature of an existing use right

Broadly, we do not believe that there should be an ability to change one existing nonconforming use to another non-conforming use. The sole exception concerns the significant areas of land which are to be (or have been) rezoned from an agricultural zone to an environmental zone, particularly on the North and South Coasts. The precise nature of the existing agricultural uses should be defined with precision in any declaration93 of existing use rights. Where there has been a declaration for agricultural lands that have been so rezoned to an environmental zone, there should be a 10 year period after the Sustainable Planning Act comes into effect, during which it should be possible to apply to either: change one agricultural use for another, or add an agricultural use to be incorporated within the existing agricultural use, as an expanded non-conforming use. For these limited classes of lands, it would be appropriate to permit multiple applications to be made during this ten year period. However, if an application had not been made by the end of that period, there should be no further opportunity to do so. Applications of this type are generally to be merit assessable. However, we also note that there may be circumstances in which an application might be regarded as impact assessable, such as some intensive livestock proposals.
Intensifying development within an existing footprint

We consider that it should be possible to make an application to intensify an existing nonconforming use within its present footprint. This intensified use should be classified as merit or impact assessable development, as appropriate, unless it falls expressly within a class of code assessable development. However, it is intended that the majority of applications for an intensification of an existing use will be classified as merit or impact assessable development.
Expanding an existing use beyond its current footprint

We now turn to the question of whether existing use rights should be permitted to expand beyond their present footprint. There may be circumstances in which it would be acceptable to permit such an expansion. However, any application seeking to do so should not be treated as a conventional one, but should have a higher assessment threshold namely, that there is no adverse impact on other surrounding uses. We consider that any application of this nature should be dealt with by the Joint Regional Planning Panel, unless the scope of the application is such that it warrants referral to and determination by the Planning Commission. In addition, the general power of the Minister to refer matters to the Planning Commission would also apply to any proposal of this nature.
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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.
Independent Hearing and Assessment Panels

Under the present planning legislation, councils may choose to establish a panel of experts known as an Independent Hearing and Assessment Panel95. This panel may assess a development application or any other planning matter, with the exception of matters that would fall within the functions of a Joint Regional Planning Panel. The range of areas of expertise from which members of the panel are to be drawn is set out in the present planning legislation96. The role of a panel is to submit a report to the council within a time specified by the council. The present planning legislation does not expressly give these panels a role in determining development proposals that are within the councils competence. No significant criticism has been levelled at the role of such panels, and the present provisions are to be incorporated in the Sustainable Planning Act. We consider that the statutory range of membership should have Aboriginal cultural heritage added as it is appropriate that this area of expertise is available, if required.
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.
Independent Hearing and Determination Panels

It has been suggested that it should be possible to delegate decision-making powers about specific development proposals (or classes of development proposal) to panels based on the Independent Hearing and Assessment Panel model97. We recommend that the Sustainable Planning Act expressly permit Independent Hearing and Assessment Panels to have determinative functions. In this case, they would be known as Independent Hearing and Determination Panels. Currently, as we understand it, some councils use general powers to delegate under sections 355 and 377 of the Local Government Act 199398 to provide an Independent Hearing and Assessment Panel (established under the present planning legislation) with determinative functions. However, the present planning legislation appears to imply that they only have assessment functions99. If there are any concerns that such determinative delegations made under the Local Government Act 1993 are invalid (because of the lack of express determinative powers for them under the present planning legislation) then they should be retrospectively validated.
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.
Joint Regional Planning Panels

In Volume 1, we set out why Joint Regional Planning Panels should be retained. However, there are a number of desirable, minor changes to the operation of Panels for their incorporation into the Sustainable Planning Act to: increase public confidence in decision-making processes give an elected council the ability to put its views to the Panel, independently of the opinion of the councils staff assessment report.
97 Environmental Planning and Assessment Act 1979, section 23I 98 Local Government Act 1993, sections 355 and 357 99 Environmental Planning and Assessment Act 1979, section 23I(1) and (2)
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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.
Guarding against conflicts of interest

Joint Regional Planning Panels are subject to a Code of Conduct101 requiring that a member should not take part in any process where there is an actual or perceived conflict of interest. Compliance with the Code is the responsibility of each Panel member. The issue of Panel members determining matters in the local government areas where they reside was specifically raised particularly in regional and rural areas as there is a greater likelihood that there would be a perceived conflict of interest102. Because of this, it is not desirable that State Panel members be involved in deciding applications in their own local government area. This conclusion is drawn knowing that alternate members are available for State participants in a Panel.
Transparency in decision making

We consider that there should be a statutory obligation on a Panel to give reasons for its decision when it rejects conclusions of or varies recommendations contained in the assessment report, including variations to conditions that might be proposed for a development proposal. Giving reasons, in these cases, will increase public confidence in the decision-making process.
Jurisdiction issue uncontroversial applications

In the Issues Paper, we noted that some development proposals within the jurisdiction of a Joint Regional Planning Panel were returned to the council for determination because there was nothing to be determined the assessment report recommended approval, the proposal was uncontroversial and no objections were received. Mandatory referral to the Panel, in such circumstances, caused unnecessary delay. It is therefore desirable to remove Panels in cases where a project is assessed as warranting approval and where there are no objections.
Jurisdiction issue aggregation of projects

In one instance of which we are aware, an applicant was permitted to aggregate several separate development proposals, at different sites owned by the same proponent, to bring the total value of the aggregated projects within the jurisdiction of a Panel. As we understand the position, there was no common impact on the surrounding locality and, apart from joint ownership, the proposals were distinctly different. Such aggregation should not be permitted.
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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Public participation and a right to be heard

Enshrining a right for the public to be involved in and heard during proceedings of the Joint Regional Planning Panels is necessary in the Sustainable Planning Act as it constitutes a relevant element of our right to know approach103. As such, this right should extend to facilitating the involvement of the proponent and those potentially affected by or interested in a decision, including the ability for an elected councillor to put forward a view to the Panel independently of the opinion of the councils staff assessment report. Such a right will increase public confidence in the Joint Regional Planning Panels decision-making processes.
The Central Sydney Planning Committee

A unique question arises concerning the status of the Central Sydney Planning Committee, which is effectively a variant on a Joint Regional Planning Panel. It was established under the City of Sydney Act 1988, although its functions are entirely related to those required to be exercised under planning legislation. In our consultation with the Lord Mayor and senior staff of the Council of the City of Sydney, the position was advanced (and reflected in the citys subsequent submission104) that the Central Sydney Planning Committee should be established under planning legislation and created as a special, unique version of a Joint Regional Planning Panel. We consider that this is an entirely reasonable proposition that should be incorporated in the Sustainable Planning Act.
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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Land owners consent

Currently, although determination of an application for approval of a development cannot result in development consent being given unless the consent of all the landholders involved has been provided in writing, assessment can be undertaken provided owners consent is received by the consent authority prior to determination of the application105. This practice causes particular problems for those administering Crown Lands, as there are certain required processes to follow when considering whether or not to give landowners consent. Development proposals that presume the granting of owners consent create problems for those administering such lands. The following submission, in response to the Issues Paper, on this topic by NSW Trade & Investment106 said:
Strengthened legal provisions requiring the written consent of the land owner prior to lodgement of a development application should be introduced. Development applications should not be able to be accepted without evidence of the written consent of the land owner. Presently cl50(1)(a) of the EP&A Regulation 2000 requires that a development application must contain the information listed at Schedule 1 which includes evidence of the consent of the land owner to the proposed development, however case law has in practice defined this to mean that a development application may not be determined but can be accepted and assessed without the written consent of the land owner. This anomaly is a significant issue for the DPI in its capacity as land owner of Crown land. Many situations have arisen where an applicant has gone to considerable expense to prepare a development application involving Crown land and significant time has elapsed in assessment of that development application by a consent authority without first ascertaining and confirming whether occupation of the Crown land for that development will be permitted. The resulting situation is that the DPI is involved at the final stage of the process, and faces significant pressure to give a speedy and favourable response to the applicants request for land owners consent so that an application can be determined. However, processes under the Crown Lands Act can be lengthy (land status checks, resolution of any Aboriginal Land Claims, land assessment requirements etc) and the proposal may not be acceptable on Crown land even if it has been assessed favourably against the planning controls. A legal requirement that development applications cannot be accepted without evidence of the consent of the land owner would circumvent this situation, and force applicants of proposed developments to liaise early with the DPI to prevent unrealistic expectations and wasted resources.
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.
Model delegations for development decision making in local councils

It is desirable, in our view, to promote consistency in the delegation of development decisions to the professional staff of councils. We had some reservations about canvassing this topic because the scale and nature of development determination varies widely across a spectrum from smaller rural councils to larger metropolitan ones. Certainly, mandatory delegations would be contrary to the one size does not fit all sentiment often put to us during the community forums. However, the Department might provide guidance by a template set of delegations that councillors could adopt, whether in modified form or not.
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.
Modifications to existing approved development

The present planning legislation107 permits applications to be made to modify an approved development. Currently, an application to modify can be made to seek retrospective approval for unapproved but completed modification108. This was a matter of some concern during the community forums as many opposed giving retrospective approval for works done contrary to an approval. While we acknowledge the ethical unease that underlies these comments, we do not see that there is any other practical alternative to retaining the present modification process. This includes retaining the substantially the same development as was originally approved test and the line of decisions in the Land and Environment Court as to how that test should be applied. Presently, if there are multiple applications to modify an approved project, the accumulation of those modifications must not permit the modified project to cross that limit. It is desirable that the statutory provision in the Sustainable Planning Act makes this expressly clear.
107 Environmental Planning and Assessment Act 1979, sections 96 and 96AA 108 Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240
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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.
Names for applications to reflect purpose

The present titles of development application and construction certificate application do not appropriately reflect the nature of these applications names which better reflect their real purpose should be used. As a consequence, we consider that the first stage application should be known as an application for development approval; while the second stage application should be known as an application for construction approval. The plans that are approved at the application for construction approval stage should be known as the approved construction plans, rather than construction certificate plans, as they are now known.
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.
Plain English guide to the classification of development

As part of the suite of measures designed to promote public information about and engagement with a reformed planning system, it is essential that there be plain English material prepared that explains the new classification system109 for development proposals.
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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.
Potential cross border impacts

Many development proposals have the potential to impact across local government boundaries or across the borders of the State. In this latter instance, there has recently been litigation concerning the potential cross border impacts of a residential development in New South Wales on the future options for Canberra airport110. While cross-state border impacts are likely to occur with far less frequency than those potentially impacting across council boundaries, common concerns arise to ensure that such impacts are properly considered. It is desirable to ensure that the neighbouring council or land-use authority across the State border is provided with an opportunity to comment before any such potentially impacting development proposal is approved. Such a regime would require that the consent authority for the proposed development have regard to any comments that might be offered. We do not propose that there be mandatory times for response or any ability to delay the process. If comments were not received from the adjacent council/land-use authority within the ordinary statutory timeframe for determining a development proposal, it should simply be determined by the consent authority.
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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Preamble to the Sustainable Planning Act?

In Volume 1111, we noted that several submissions suggested that any new legislation should contain a preamble or broad philosophical statement of purpose that did not form part of any statutory objects of it. The present planning legislation in Queensland (known as the Sustainable Planning Act 2009) contains three provisions112 setting out the purposes of the legislation. These provisions, however, are what would be regarded as the objects of these Acts when compared to the structure of our Environmental Planning and Assessment Act 1979. We observe that, if there were to be such a preamble or statement, it should make clear the reasons for the legislation and its purpose, but not compromise the overarching object we have proposed for the Sustainable Planning Act113. We make no recommendation as to whether or not there should be such a preamble that is a matter more appropriate to be considered by the Government. However, based on the broad sentiments of last years consultation process, we have drafted an example below of how such a preamble might read:
The land and waters that comprise the State of New South Wales have had Aboriginal peoples and, more recently, people from diverse cultural backgrounds as the custodians. The land and waters incorporate a rich diversity of landforms and plant and animal life. The landscapes are diverse and beautiful and include landscapes of cultural significance to Aboriginal peoples. The land and waters have provided food, shelter and other material support to their custodians throughout human occupation. That occupation and use has modified and had an impact on a wide range of those natural values. Population density has increased the potential for those impacts. In recent times, laws have been put in place to regulate and control human impacts on the States natural values. These laws have sought to regulate, amongst other purposes, the planning for and control of land-use across the State. Past legislation had become complex and unwieldy not appropriately performing the roles that were necessary. A new planning system is needed to ensure that the impact of humans on the land and waters of New South Wales and on the health and general well-being of its people is regulated. This will ensure that permitted development is planned for, as well as being sustainable, in the following ways:
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.
Removing consistency as a design criterion in assessments

We are aware of some local controls that require a development proposal to be consistent with the streetscape or development pattern in the locality of the proposed development. Sometimes the test is put as a not inconsistent with test rather than one of consistency. Such a requirement is entirely independent of conventional numerical controls in a Development Control Plan or thematic design principles depicted in diagrams or sketches. We do not believe that broader consistency type tests of this nature can co-exist with a code assessment process. As a consequence, consistency or non-inconsistency tests are not appropriate to be retained for code assessable development, except where the proposed development is in an identified local heritage conservation area or is in the immediate vicinity of a State or locally identified heritage object or group of objects.
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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.
Stop the Clock Provisions

The Sustainable Planning Act must balance the need for a proper and thorough but timely assessment of applications. Currently, assessment periods, being the time within which a development application must be assessed, are set by regulation116. The commencement of the assessment period is two days after the development application is lodged117. Applications are taken to be refused if a consent authority has not determined the application within the assessment period118. After that time, the applicant may appeal to the Land and Environment Court on the basis of a deemed refusal119. The Court then undertakes a merit assessment and determines the application. However, in certain circumstances, a consent or concurrence authority may request additional information from the applicant and, during this phase, the assessment period is taken to have stopped120. Allowing the clock to be stopped by a consent authority when undertaking assessment of merit and impact assessable proposals to permit a request for further information provides for proper decision making, while not unduly holding up the decision making period. Provisions to permit this should be continued, but limited to one request only. The assessment period clocks should be restarted if the applicant provides the information to the consent authority, notifies the consent authority that the information will not be provided or fails to provide the information within a reasonable time period. The development application should be taken to be refused, if a consent authority has not determined the application within the extended assessment period. In addition, the assessment period should be able to be stopped at the applicants request for the purpose of providing further information to the consent or concurrence authority or to make representations to a consent or concurrence authority at any time before the decision is made.
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.
Verification of the stated development application values

During community forums, council staff informed us they suspected that the declared project value in development applications was often understated to reduce the application fee payable, particularly for larger scale developments. Because of this, a quantity surveyors cost certificate should be required for development with a project value above the jurisdiction threshold of Joint Regional Planning Panels if the assessing authority disputes the project value estimate.
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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PART 7 The Land and Environment Court additional matters

Hearing from objectors during conciliation processes
During the conciliation phase of the present conciliation/arbitration model121, there is no entitlement for submitters to be able to explain their position. The conciliation phase should incorporate a right for those who might object to (or support) a proposed development to explain their reasons, if relevant, to the Commissioner during the conciliation process. Other than this explanatory opportunity, objectors or supporters should not have any right to participate in (but may observe) the conciliation phase.
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.
Requiring concurrence authorities to defend their delay or refusal

During the course of the community forums, we were told on several occasions of instances where a council wished to give timely approval to a proposed development but was unable to do so because of an inordinate delay in receiving comments and/or conditions from a concurrence authority. In a number of instances cited, the council was then left to defend a deemed refusal appeal in the Court. In some instances, little or no assistance was provided by the concurrence authority, apart from whatever advice had been given (if there was an actual rejection of the proposal). In these cases, the councils were obliged to meet any costs of defending the appeal, even if only through the initial procedural stages. Where the necessity to incur legal expenses in defending a deemed refusal arises from either inaction by a concurrence authority or its decision not to grant a concurrence, there is justification for enabling the consent authority to apply to the Court to have the recalcitrant concurrence authority joined as a respondent to the proceedings. If the concurrence authority were to be joined, the consent authority would be free to decide whether it wished to contest the substantive issues. Joinder would leave opportunities open, if appropriate, for either the applicant or the consent authority to seek costs orders if they thought that any of the tests enunciated by Preston CJ in Kiama Council v Grant122 were satisfied, so that it was fair and reasonable for the Court to make such a costs order. It is our view that this process would be located, appropriately, in the Land and Environment Court Act 1979 rather than in the Sustainable Planning Act.
121 Land and Environment Court Act 1979, section 34AA 122 Kiama Council v Grant (2006) 143 LGERA 441
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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.
Costs orders application amendment during the appeal process

Currently, if a proponent who has commenced a merit appeal in the Court seeks to amend their application, the Court is required123 to make a costs order (in favour of the consent authority) if the amendments are other than minor amendments. The order is to compensate the consent authority for the additional costs that are thrown away by permitting the proposed amendments. Prior to early 2011, a more onerous mandatory costs order was required that all costs of the consent authority be paid up to the time of granting leave to amend. The current form of order provides a balanced approach to dealing with these matters essentially replicating the former practice of the Court to grant leave to amend only if an undertaking was given by the applicant that the additional costs of the consent authority in responding to the amendments would be met by the applicant (either on an open basis or in terms of an agreed sum). We consider that the present costs order provision should be retained, with the Court to determine only if the amendments are minor.
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.
Extension of orders able to be made in remedy or restrain matters

Currently, when the Land and Environment Court is satisfied that a breach of the present planning legislation has or will be committed, then the Court has the power124 to make orders to remedy or restrain the breach. In the Sustainable Planning Act, the Court should also be given the express power to make orders requiring name and shame notifications of the type provided for in the Protection of the Environment Operations Act 1997125.
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.
Commissioners assisting Judges in Class 4 matters

Currently, a Judge who is hearing a matter in Classes 1, 2 or 3 of the Courts jurisdiction can be assisted by a Commissioner to provide technical advice to the Judge, if requested. The Commissioner performs no adjudicative function. Such advice may also be useful to a Judge dealing with planning matters in Class 4 of the Courts jurisdiction. The Chief Judge should be able to allocate a Commissioner to undertake this role in Class 4 matters involving the Sustainable Planning Act. Further, this reform may be desirable across all Class 4 matters.
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.
Class 4 matters and related common law issues

A recent case126 in the Land and Environment Court involved a combination of issues relating to the same facts and circumstances. They concerned both site contamination and common law issues127. The primary matters fell within the Courts Class 1 jurisdiction; however, it was appropriate for a Judge of the Court to be able to deal with the associated common law issues if it were required. To do this, it was necessary to commence proceedings in the Supreme Court and transfer them to the Land and Environment Court. Although these circumstances are rare, it is not impossible that they will arise in the future in a planning context. In our view, ancillary common law matters relating to planning matters in the Courts jurisdiction should be commenced directly in the Land and Environment Court. This would avoid the expense and complexity of commencing common law action in the Supreme Court and then transferring it to the Land and Environment Court to bring all relevant matters within one set of proceedings. If this recommendation is accepted for planning matters, it would also seem sensible to consider its adoption across the Courts jurisdiction generally.
126 effman Pty Ltd and Lawrence Dry Cleaners Pty Ltd v Environment Protection Authority of NSW, Sydney Water J Corporation and Douglas and Hilary Hutchinson [2011] NSWLEC 89 at para 40 127 For example, an allegation of nuisance
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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.
Revocation of development consents

Currently, development consent can be revoked on a limited range of grounds, such as corruption or an application to the Director-General demonstrating good reason why the consent should not be permitted to continue in operation128. They have been rarely invoked and there were no proposals of substance advocating that these present provisions be removed. However, it was suggested that councils should have an unlimited right to revoke a development consent, provided that appropriate compensation was paid to reflect the loss of the consent. This suggestion arose as a consequence of concern that a council should be able to change its mind about the acceptability or otherwise of a development proposal not just on the basis of some irregularity. Thus, it would act as an opportunity for the council to reconsider whether or not it wished to approve the particular development, and allow it to rescind (take back) the approval. To adopt such an open-ended proposition would impose a significant and unacceptable additional uncertainty for land with a development consent. It would be contrary to the principle of finality in decision making and, for this reason, we reject it. Although we do consider that it is appropriate, in extreme circumstances, for the Land and Environment Court to be able to revoke a development consent as a penalty arising from a prosecution for a Tier 1 offence. Further to the above, an important element of sentencing theory is that it should provide the widest possible appropriate range of methods for deterring unlawful conduct. Whilst we acknowledge that a development consent runs with the land, in extreme circumstances, the Court should have a right to revoke it. We are of the view that this should only apply to a use of the land, rather than revoking the lawfulness of any structural works that may have been constructed according to the development consent. An example of circumstances that might give rise to such a revocation would be if there were a consent to use premises for the purposes of therapeutic massage and, in the course of a prosecution, it was established that they were being used habitually as a brothel, contrary to conditions of consent forbidding such a use. Revocation of the development consent for the use might well be an appropriate deterrent message to be sent in such circumstances.
128 Environmental Planning and Assessment Act 1979, section 96A
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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.
Challenges to validity of development consents

The present planning legislation states that a challenge to the validity of development consent must commence before the expiration of 3 months from the date on which public notice was given in accordance with the regulations129. However, it is established that the structure of section 101 of the present planning legislation will not exclude all challenges after three months. Examples are where proceedings to challenge a development consent outside the three month time limit include, but are not limited to, where a decision maker has exceeded its jurisdiction130 or where there has been a denial of procedural fairness131. However, the Land and Environment Court has wide discretion132 as to what (if anything) should flow from a successful challenge.
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).
Costs orders in civil enforcement cases

Currently, the ordinary costs follow the event rule applies when considering costs, in cases taken in Class 4 of the Courts jurisdiction133. This rule applies unless the Court is satisfied that the litigation should be considered public interest litigation134, and is important enough to warrant a variation to the ordinary rule. Conservation stakeholders have suggested to us that we should alter the basis upon which costs are considered in these cases. The present Chief Judge of the Court has set out135 a three step test for considering whether the ordinary rule on costs should be set aside for this type of litigation, and whether a less onerous or no costs order should be made.
129 nvironmental Planning and Assessment Act 1979, section 101 and Hoxton Park Residents Action Group Inc v E Liverpool City Council [2011] NSWCA 349; (2011) 184 LGERA 104 130 v Hickman; Ex Parte Fox (1945) 70 CLR 589; Association for Berowra Creek Inc v The Minister for Planning & Anor R [2003] NSWLEC 38 131 Lesnewski v Mosman Municipal Council [2005] NSWCA 99 132 Land and Environment Court Act 1979, section 25B 133 t present, costs are considered pursuant to the open standing provisions in the present planning legislation A (which we have recommended should be retained see Volume 1 at page 108). 134 shlack v Richmond River (1998) 193 CLR 72 O 135 aroona Coal Action Group Inc v Coal Mines Australia Pty Limited and Minister for Mineral Resources (No 3) [2010] C NSWLEC 59; (2010) 173 LGERA 280
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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.
136 Protection of the Environment Operation Act 1997, section 248
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PART 8 Councils additional matters

Council Order making generally
Currently, councils have the power under the present planning legislation to issue a range of orders for compliance or community protection. In order to do so, the council must give notice of the intention to issue an order and of the terms of the proposed order. A person or entity receiving this notification has the right to make submissions to the council about: why the order should not be made why, if the order is made, it should be made in different terms to those proposed. If the council then makes an order, there is a right of appeal to the Land and Environment Court which has wide discretionary powers to confirm or vary the order or to discharge it. In general terms, we do not consider that there is any need to depart from this model. However, we make the following comments: First, all the order making process is currently set out within the present planning legislation. Therefore, to modify or add to the range of orders it is necessary to amend the legislation a time consuming process. The need for this could be avoided if the table of orders were contained in regulations to the Sustainable Planning Act (written in a plain drafting, narrative form), which would not remove Parliamentary scrutiny or public accountability. Only necessary elements of the order making power should be in the Act itself, also in plain drafting, narrative form. Second, a number of suggestions were made about additional orders that should be available. Some proposals would involve significant philosophic shifts, such as an ability to order completion of a development when it appeared to the council that there was no reasonable probability that this would otherwise occur. Giving a council the power to do so would be a radical shift and we do not consider it appropriate. This is because we have proposed a change to the test for determining whether or not a development consent has lapsed after the expiry of seven years137 which provides a sufficient response to the desire to ensure that development, once commenced, is completed. Third, other suggestions merely recommended changes in the emphasis or modest expansion of the scope of the present orders for example, a broader power to order the clean up of unsightly property. We do not propose to canvass these suggestions in detail; however, it is desirable that there be a focused and detailed review of all of the orders contained in the present planning legislation to ensure that the language remains relevant and that no additional orders should be added. This review must involve local government, industry and the community, but not need to be completed prior to the coming into effect of the Sustainable Planning Act and its supporting regulations (given the likely heavy workload of the Department to implement the planning reform) as the present table can be used in the interim.
137 See Volume 1, Part C, Chapter 14 at page 113
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Councils additional matters
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.
Drafting precision for orders

A further matter that arose during the consultation process related to the technical aspects of drafting orders. It was suggested to us, on a number of occasions, that councils felt the necessity to consult their solicitors on the drafting of an order prior to issuing it. Even so, when such checking had occurred, councils still faced legal challenges. It was suggested to us that new legislation should make specific provision for an order to be valid provided its intention was clear. This would ensure that challenges to orders were dealt with on the substantive merits, rather than on technicalities of drafting. Although such a provision might be of limited utility, if it had some effect in reducing litigation and legalism, this would be a desirable outcome. We therefore propose that such a provision be included in the Sustainable Planning Act.
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.
138 See Volume 1, Part C, Chapter 13 at page 108
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Strict liability penalty notice offence false or misleading information

The present planning legislation includes offences that arise where a person knowingly provides false or misleading information139 or makes false or misleading statements140. Such offences require that the requisite state of mind must be proved making a successful prosecution difficult. We consider that these offences should remain as offences under the Sustainable Planning Act and should be capable, in extreme cases, of being dealt with as Tier 1 offences in the prosecution regime we have recommended141. However, we also consider it appropriate that there be a lesser penalty able to be imposed for the provision of false or inaccurate information via a strict liability penalty notice offence with an appropriate penalty. We do not consider that there should be such a strict liability penalty notice offence for misleading information, as what may or may not be misleading can be a subjective question, whereas accuracy is determined by an empirical true/false analytical process.
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
PART 9 Enforcement policies

It is inevitable that those responsible for enforcement under the Sustainable Planning Act, whether at the local or State level, will need to make decisions about whether or not enforcement action should be taken. Those decisions will reflect day to day discretions, at a comparatively low level (by council or Department of Planning and Infrastructure compliance officers) through to more significant decisions of whether or not to commence a prosecution in either the Local Court or the Land and Environment Court. Particularly with respect to prosecutions in the Land and Environment Court, decisions as to whether or not to initiate a prosecution are of potential significance not only to the potential defendant but also to the community. Given that there will always be discretions exercised in decisions as to whether or not to prosecute or whether or not to undertake enforcement by the issuing of an infringement notice, it is desirable that this process be predictable and transparent. The only way that this can occur is if there are clear and publicly available guidelines that set parameters for exercising enforcement discretions that cover the spectrum from whether a penalty notice should be issued through to whether a prosecution for a Tier 1 offence should be commenced. Therefore, councils and the Department of Planning and Infrastructure should be required to revise existing or develop new compliance/enforcement policies with a mandatory public comment period on these. The Department of Planning and Infrastructures revised compliance/enforcement policies are to be subject to Ministerial approval after advice is provided by the Planning Advisory Board on their proposed terms. It is likely, for councils, that there would be local variations in enforcement policies. However, it is desirable for there to be a set of model guidelines that councils could consider and adapt. In this regard, the enforcement role of councils goes beyond matters in the Sustainable Planning Act and any regulations made pursuant to it. Therefore, we propose that the Minister for Planning and Infrastructure write to the Minister for Local Government asking that the panel reviewing the Local Government Act 1993 consider that councils might develop a comprehensive enforcement policy covering the totality of their enforcement activities rather than merely relating to the Sustainable Planning Act. If this were to be the case, it would be desirable that any model policy on this topic be developed on a co-operative basis between the Department of Planning and Infrastructure, the Division of Local Government and the Local Government and Shires Association with comments to be sought from appropriate industry and conservation interests and, when a draft was available, from the Planning Advisory Board.
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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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PART 10 Environmental Impact Statements

Introduction
A number of participants in the consultation process expressed concern that Environmental Impact Statements are prepared by consultants who are selected, retained and paid by development proponents. As such, it was said that consultants act as hired guns and are not independent. The Issues Paper set out a number of proposals advanced for addressing these concerns including: establishing an accreditation system for consultants requiring a funding system to permit councils or community groups to engage an expert reviewer stipulating that the consent authority must engage the consultants, rather than the applicant stipulating that all reports must be peer reviewed by externally nominated reviewers. In submissions responding to the Issues Paper, those who were (or were likely to be) proponents of development that would require an Environmental Impact Statement (or organisations representing them) resisted any change to the present system. This position was also taken by those who undertake the preparation of expert reports for Environmental Impact Statements. This was not only based on unnecessary additional cost and delay, but also on what was said to be an unjustified criticism of the professionalism and independence of those undertaking such investigation and reporting activities. Unsurprisingly, council and community perspectives reflected a degree of cynicism about the independence of and adequacy of work done by such consultants. At present, if it appears sufficiently serious to warrant so doing, an assessing body, whether a Council or the Department of Planning and Infrastructure or some other instrumentality, can commission and pay for their own studies. Exercising this option happens on a modestly frequent, but by no means universal basis. Much more rarely, but still occasionally, a community group will engage an expert to examine some aspect of an Environmental Impact Statement of concern to that group. Nothing in the new legislative framework should restrict these options. Requiring that the consent authority engage the consultants or nominate who would be acceptable consultants, in our view, fundamentally misunderstands the nature of the process being undertaken. It may well be that an Environmental Impact Statement process could lead to a decision not to make an application. Similarly, the project may be significantly modified as a consequence of studies being undertaken prior to the finalisation of the Environmental Impact Statement process. Very real issues of commercial confidentiality also arise if the first of these circumstances occurs and no project application is actually lodged. We are also not attracted to establishing a funding pool created by a levy on project proponents to fund external expert reviewers engaged by the consent authority or
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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.
Accreditation for those preparing an EIS or supporting studies

We have received a wide range of submissions proposing a mandatory accreditation or certification system for consultants preparing Environmental Impact Statements. Submissions also opposed to the introduction of such a system. In this context, we particularly note the comments contained in the submission from the NSW Treasury142 on this topic:
Section 3.2.9 Environmental Impact Statements Environmental Impact Statements give consent authorities information and evidence on the environmental implications of a development. Information provided in the Statements includes impacts on water, threatened species, heritage and bushfires. Information requirements should be streamlined where possible to minimise the regulatory burden on applicants. To improve the confidence of the system, planning reports should be provided by consultants or bodies that are pre-approved or certified by the Government. Recommendation Seventeen: Consultants that provide Environmental Impact Statements should be chosen from an accredited panel, and required to meet certain standards regarding the impartiality and quality of their work.
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.
142 See http://planningreview.nsw.gov.au/LinkClick.aspx?fileticket=s0S5qGGKwiM%3d&tabid=119&mid=569 143 See Volume 1, Part N
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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.
Director-Generals requirements for Environmental Impact Statements

Currently, the Director-General of the Department of Planning and Infrastructure issues requirements for Environmental Impact Statements. Our recommended development classifications146 means that the Director-General will need to continue to issue requirements for the preparation of such statements for all impact assessable development proposals. As we understand it, there is a significant degree of commonality in the structure and content of such requirements (although the requirements may incorporate specific matters relating to the proposal). It is therefore possible to publish on the Departments website a broad template of those matters of likely standard Environmental Impact Statement elements for various classes of development. Although we accept, as discussed above, that it is not appropriate to remove responsibility for the preparation of Environmental Impact Statements from project proponents (in part for reasons of commercial confidentiality), we do not consider that the issuing of DirectorGenerals requirements for the preparation of an Environmental Impact Statement raises
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.
Reviews of Environment Impact Statements

We consider it appropriate that there be an opportunity for an authority assessing an Environmental Impact Statement to require a peer review of any facet of the submitted material, at the proponents expense. The process for nominating who is to conduct the peer review is to be by the assessing authority nominating a panel of three peer reviewers, and the proponent accepting one of those. The peer reviewing role is to be analogous to the role of a single partys expert in Court proceedings, where all communication with the peer reviewer by either the assessing body or the proponent is to be disclosed to the other. The peer reviewers report is to be available to both and published on the assessing bodys website. This process should not be established as an open-ended one to permit assessing authorities automatically requiring every report to be peer reviewed and, in effect, obtaining a second opinion about everything. To provide proper control, the Director-Generals consent is to be required. Any proposal for a peer review during any Departmental assessment is to be referred to the Chairperson of the Planning Commission to be considered on the papers. We do not envisage that any peer review will involve additional fieldwork. It is to be confined, simply, to a review of the documentation, with the peer reviewer accessing original field data if necessary. We do not consider that any significant extension should be made to the permitted assessment periods for developments where this provision might be triggered, but an additional period of five working days should be added. Peer reviewing should only be able to be invoked once (although may be able to be invoked concerning more than one aspect of the application or its supporting material) so that there is only a single extension of time to the assessment period.
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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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PART 11 Former Aboriginal reserves and missions

In Volume 1147, we noted that 59 former Aboriginal reserves and missions throughout the State have not been brought appropriately within the present planning system. We consider that dealing with these reserves and missions is a fundamental issue of social justice for the Aboriginal people generally and for the Aboriginal communities living on or associated with these sites in particular. It may, however, take some considerable time to finalise the last of them through the process that we envisage. This issue has been canvassed with us in two submissions148 from the New South Wales Aboriginal Land Council. These submissions identify a number of issues concerning these reserves and missions and their present exclusion from the ordinary processes that might be expected to have been applied through the present planning legislation. These differently treated parcels of land remain, in fact, relics of the colonial era-treatment of Aboriginal people. As a consequence, we consider that this defect warrants rectification. The New South Wales Land Council made the following five recommendations in its second submission149: A new planning system must recognise and acknowledge the historical existence and cultural significance of Aboriginal settlements on former reserves and missions as a standalone type of development. A planning approvals process should be established that acknowledges the state significance of these sites in order to overcome the current barriers that are hindering these sites from becoming recognised as part of the NSW planning system, and re-integrate these sites into the NSW planning system without undue expense. A specific state-level approval process and consent authority for development proposals should be established relating to former reserves and missions to ensure a coordinated approach. Any proposed programs or legislative mechanisms to address former Aboriginal reserves and missions should be developed in partnership and close consultation with NSWALC and affected Local Aboriginal Land Councils. Timelines must be negotiated with NSWALC and relevant LALCs to allow enough time for genuine consultation to occur, and ensure that any potential adverse impacts are minimised (e.g. other operational requirements of LALCs; timeframes related to social housing schemes imposed by the Housing Office; funding from external sources). We have considered, not merely these five recommendations, but also more broadly how these issues should be dealt with within a reformed planning system. We take the fourth and fifth of the New South Wales Land Councils recommendations, before turning to consider how the decision-making processes will deal with these parcels of land.
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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Former Aboriginal reserves and missions
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
PART 12 Community Engagement

This Part discusses some additional matters where we think that greater engagement of the community with the planning system can be facilitated.
Assisting with the right to know

In Volume 1, we have discussed151 the opportunities to use new electronic media notifications, drawing the attention of those who have expressed interest in a particular topic to the fact that new material may have become available. Fundamentally, the planning system should not regard informing the community as a passive process it needs to be an active and dynamic one reaching out rather than relying on those who are interested to hunt for and find information on topics with which they wish to be engaged. We also recommended in Volume 1152 that there be a continuing professional development program for those involved in land-use planning in the State and local government sectors. We consider that a significant element in that education must involve use of evolving communication technologies and how these can be used to communicate with the community.
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.
Project identification on the Departments website

Currently, information regarding major projects is made available on the Departments website (called the Major Projects Register)153. Unfortunately, finding information on a project requires text searches not by using visual options such as maps or images. In order to advance the right to know, information should be accessed via both text searches and interactive visual means (such as used by us during our consultation process154). A zoom-in function would be required in the Sydney metropolitan area or the Hunter Valley, where there might be a number of projects in close proximity.
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.
153 See http://majorprojects.planning.nsw.gov.au/page/ 154 See http://planningreview.nsw.gov.au/ConsultationProcess/CommunityForumMap/tabid/89/Default.aspx
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PART 13 Other reform measures

In Volume 1155, we proposed two other major measures to reform the planning system (establishing a Planning Advisory Board and addressing copyright issues). The following are three other areas of reform that are desirable.
Planning in the unincorporated area of the State

The unincorporated area of New South Wales comprises approximately 29 per cent of the State. Currently, the Western Lands Commissioner has limited supervisory responsibility for planning in this area, with significant projects, triggered by State Environmental Planning Policies, falling within the jurisdiction of the relevant Joint Regional Planning Panel. We have recommended that a unitary planning document156 apply in all areas where there is a relevant local government body responsible for local planning matters. Currently, there is no document relating to the unincorporated area that would comprise either of the second and third elements157 of such unitary planning document. Although management of Silverton, for example, is vested in a trust, there is no environmental planning instrument that sets the framework for any planning activities that might be appropriate for that village. Much of the development that will take place in the villages in the unincorporated area would fall within what will ordinarily be categorised as exempt or code assessable development. Development on agricultural/pastoral holdings would be similar as long as care is taken in situating them relative to ephemeral watercourses, vegetation and permanent water storages. Nonetheless, there should be a Land-Use Plan for the unincorporated area together with an accompanying Development Control Plan. Both these documents may be of comparatively modest scope but must provide appropriate guidance to those living or undertaking activities within this vast area of the State. The Department of Planning and Infrastructure should take responsibility for the preparation of these two documents in conjunction with the Western Lands Commissioner and in consultation with the Western Lands Advisory Council and other bodies with an interest in this area.
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.
Revitalisation of the Newcastle Central Business District

The issue of mine subsidence risks and it acting as a barrier to redevelopment of the Newcastle Central Business District was a specific issue raised with us during the consultation process. The Issues Paper set this out at 18.5 Aggregated developments in mine subsidence areas. We asked:
D130. Is it appropriate to consider, in legislation for a new planning system, providing a statutory basis for spreading the cost of a necessary rehabilitation or stabilisation measure across all property ownerships benefited by such a measure?
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.
Transferable development rights to agricultural land

In the Issues Paper, we posed questions158 relating to transferable development rights for agricultural land. Discussion during our non-metropolitan community forums on this topic centred on the ability of farmers to access the value of their farm (as their superannuation) and retire from farming by passing the farm to a future generation of the same family.
158 In Section D2.5 at page 55
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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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PART 14 Certification matters

The role of private certifiers
Introduction
As part of earlier changes to the way development is inspected for conformity with building standards and for compliance with the development for which an approval had been given, the exclusive vesting of compliance certification was removed from councils. A system establishing certification by private professionals (contracted on a project by project basis) was established. This private certification option runs in parallel with the council-based system. An election is made by those undertaking the development of whether they wish to appoint a private professional certifier or retain the council to undertake the role (in either case known as the principal certifying authority). In addition, a class of development, presently known as complying development, is able to be approved by a non-council, private certifier. Widespread distrust was expressed about private certification during the course of the community forums and in a number of submissions. We have no way of evaluating, accurately, the extent to which there might be validity in these complaints. It has not been appropriate for us to make broad recommendations about regulation of the building industry or the regulation of and disciplinary procedures for certifiers. There are, however, some matters concerning the role of certifiers, both private and council, where it is appropriate for us to make recommendations.
Consistency of construction plans with development approval

Where development is being undertaken in accordance with a development consent, the principal certifying authority is required to certify that the detailed working plans (pursuant to which construction is to be undertaken) are not inconsistent with the development consent159 granted by the consent authority. These are currently known as the Construction Certificate Plans. These are accompanied by a Construction Certificate authorising the carrying out of the works shown in those plans. This means that a certifier ought not permit any variation, save what might be regarded as minor and non-impacting, from the plans for which development consent was granted by the council. In Volume 1, we recommended160 that the only changes to be permitted to construction plans (when compared to the plans for which development consent was given) are to be specified as being minor changes (with this requirement to be contained in the Sustainable Planning Act). This change will address the valid concern that a small minority of certifiers permit variations that are otherwise impermissible. Restating the test in a more restricted fashion should provide greater certainty for ensuring compliance.
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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Separation of granting consent and certification during construction

Earlier in this Volume161, we recommended that the roles of granting an approval for code assessable development for new freestanding or dual occupancy residential dwellings should be separated from and not able to be performed by the same person who performs the construction inspection (or a partner of that person or anybody employed by the same commercial entity). We have restricted this to new freestanding or dual occupancy residential dwellings as this was the dominant area of complaint. If there is to be a wider review of the building industry, the question of whether this restriction should be expanded might be considered by that review. This is an appropriate and measured response, we consider, to the perception that there is an incentive for a private certifier to approve a project in order to have the benefit of the subsequent construction phase inspection work. The problems do not arise for council staff as they have no potential economic incentive to grant an approval.
Code assessment of master or concept plan elements

Finally, in order to ensure that there is proper accountability for individual development elements arising out of approved master or concept plan proposals, we have recommended162 that it should be mandatory that the code assessment process for the individual elements should be undertaken by the consent authority that granted the consent for the concept plan or master plan and should not be able to be dealt with as code assessable by a private certifier.
Final and interim occupation certificates

Certification also includes giving permission to use the whole or part of a development by issuing either an Interim or a Final Occupation Certificate. Interim Occupation Certificates do not have an expiry date. The consequence of this is that some developments may be used pursuant to Interim Certificates without a Final Occupation Certificate ever being issued to finalise the development. Final Occupation Certificates certify that the development is appropriate to be used, on a permanent basis, but do not amount to certification that the development has been carried out generally in accordance with the original development approval. A private certifier is obliged to inform the council at varying stages of a development of the progress of that development, including the initial issuing of any occupation certificate (interim or final). The broad question of whether or not the certifier, whether council or private, who issues a Final Occupation Certificate should be required to certify that the development has been completed in accordance with the construction approval and that the only variations
161 See Part 6 of this volume 162 See Part 6 of this volume
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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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PART 15 Rejected matters

Matters outside the scope of our review
A number of other policy areas were raised with us that are entirely outside the scope of our review. Two examples of these illustrate this point: It was suggested that we should recommend the banning of coal seam gas exploration and extraction. Whether or not that is desirable is for policy consideration by the Government. It is sufficient for us to acknowledge that we have neither the mandate, nor the technical expertise to consider such an issue. Some suggested that we should propose population policy measures, including population limits. One submission said that, for many of our cities, permanent legislated limits to growth must be implemented. Others suggested that we should make stipulations relating to the Greater Sydney metropolitan area, including the desired maximum population for the region or the geographic outer limits of its footprint. These, too, are policy issues entirely outside our mandate. Finally, we should observe that there have been a limited number of suggestions relating to the fundamental basis of the planning system. Specifically, that it should permit the unregulated and unlimited right of a property owner to undertake any development. We reject this fundamentalist property rights view because it is antisocial and contrary to the overarching objective of the Sustainable Planning Act163.
Rejected matter An absolute right to develop

We do not accept that zoning should be the sole determinant as to whether it is appropriate to approve a development on a particular site. The proposition discussed by McClellan CJ in BGP Properties Pty Ltd v Lake Macquarie City Council164 is that there is a presumption that a property may be so developed, but that there is no such absolute right. It is important to note that our proposal to stream development applications and their assessment processes renders the consideration of this topic unnecessary, to a large extent. Exempt and code assessable development embody development proposals that might be regarded as embodying a right to develop. Our proposed classification process will, however, reserve greater scrutiny for merit and impact assessment development proposals where such a right should not exist.
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
Rejected matter Commercial viability of a proposed development

In the Issues Paper, we asked the question:
D39. Should the economic viability of a development proposal be taken into account, in deciding whether the proposal should be approved or in the conditions of approval?
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.
Rejected matter Commercial viability of existing businesses

The question arose of whether or not the planning system should have regard to the continuing viability of existing businesses, if development approval were to be given to a new business that would result in competition. In this context, we note two relevant reports of the Productivity Commission165 in 2011. In the December 2011 report, the Commission made it clear that questions of economic impact on existing businesses should not be factored into an assessment of proposed developments. The broad position on considering questions of economic and social impacts, as found in section 79C of the present planning legislation, was settled by the High Court in Kentucky Fried Chicken Pty Ltd v Gantidis166
the mere threat of competition to existing businesses, if not accompanied by a prospect of a resultant overall adverse effect upon the extent and adequacy of facilities available to the local community if the development be proceeded with, will not be a relevant town planning consideration.167
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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Rejected matter Deemed approvals

A number of submissions proposed that there should be deemed approvals if the assessment and determination process has not been completed within the specified time period. We understand the sentiment behind this namely, a desire to eliminate delay in the assessment and determination of development proposals. We consider that it would be a step too far to adopt such a proposition. No one has satisfactorily identified any method that would enable conditions of consent to be imposed for more complex matters that would respond to the particular proposed development. At first glance, deemed approval might be appropriate for a code assessable development application, as this could be subject to standardised default conditions of consent. However, we are not satisfied that it is appropriate to remove confirming that the proposal actually qualifies as code assessable development. In addition, we expect deemed approvals would inevitably lead to a culture of automatic refusals as the time limit approached, with the consequent need for the engagement of review processes or commencement of litigation neither outcome being a desirable one. However, we have made a number of recommendations that will assist in reducing delay in the system including the following: revising the classification of development proposals168 significant streamlining of concurrence processes169 changing the culture within the planning system to be facultative of acceptable development170.
Rejected matter Past performance of a development applicant

Currently, it is the long settled legal position that a person or company who is given a development consent subject to conditions will abide by the terms of those conditions171. During the course of one of the community forums, it was suggested that, if a person or company had not obeyed the terms of a development consent, a consent authority should be permitted to take into account that unsatisfactory performance in deciding whether or not to give a further development consent, subject to conditions (if a fresh application for development is made by that person or company). It was also suggested that, if a person or company breached the conditions of an earlier development consent, the extent and nature of those breaches ought to be a matter able to be taken into account in considering whether or not any future development consent should be granted subject to conditions. We cannot accept either of these propositions. Development consents have never been personal but are in rem that is, attached to the land. Whilst past conduct might, in extreme cases, warrant more onerous conditions of consent172, past performance is not an appropriate factor to be considered in deciding whether or not a proposal should be approved.
168 Volume 1, Part C, Chapter 6 169 Volume 1, Part C, Chapter 9 170 Volume 1, Part I 171 Jonah Pty Ltd v Pittwater Council [2006] NSWLEC 99 172 See Volume 1, Part C, Chapter 11
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Rejected matters
Rejected matter Property values

In the consultation process and in individual submissions made to the Issues Paper, there was a recurring request to include an element relating to property values in development proposal assessments. Specifically, it was suggested that development proposals should be assessed as to whether or not they have an adverse impact on the value of properties in the vicinity, and if so, the extent of that impact. It is the long settled legal position that any negative impact on property values is not a matter to be taken into account in assessing the acceptability of a development proposal that is otherwise permissible at the location173. Although we understand why there are valid concerns regarding the possible impact on property values by a proposed development, we do not consider that it is appropriate to change the long-standing legal position. One simple example is sufficient to demonstrate why this should be the case. If, in a settled residential area, there is a parcel of bushland that is zoned residential but has not been developed, those living in its immediate vicinity may well have become accustomed to treating it, informally, as if it were a reserve. Indeed, the value of the surrounding properties may well have been influenced, positively, by their outlook over the undeveloped bushland. Subsequently, there may be an appropriate and compliant application to build on the land, which would not be problematic in a conventional planning assessment. If approved, however, it may well have an adverse impact on the value of the surrounding residences. If that impact were to be taken into account, the effect might well be the involuntary sterilisation of the development potential of that residentially zoned land, clearly in itself an inequitable outcome.
Rejected matter Use of public positive covenants by councils

A public positive covenant174 in favour of a council creates a restriction on the use of land that is only able to be changed by the council. Some councils use public positive covenants as an additional measure to enforce conditions of development consent. There was a suggestion that this duplicates matters that can be dealt with through the development consent process. As a consequence, when positive covenants are required to be registered on the title of the property, they are regarded as imposing an unnecessary expense on a development proponent and should be prohibited.
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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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
140
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
141
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
142
Appendix 1 NSW Planning System Review Terms of Reference

The New South Wales Planning System Review is to undertake the following tasks in advising the New South Wales Government on a new planning system for the State and a new legislative planning framework to replace the Environmental Planning and Assessment Act 1979. In doing so, the Planning System Review is to: 1. 2. 3. C onsult widely with stakeholder groups and communities throughout the State to identify the issues that require consideration in developing a new planning system; To consider stakeholder and community submissions on issues identified during the consultation process; E xamine interstate and overseas planning systems to ensure that relevant best practice options are considered for inclusion in a new planning system for New South Wales; R ecommend a statutory framework and necessary implementation measures for a new planning system for New South Wales that: enunciates what should be the philosophy and objectives to underpin a new planning system; contains clear and simple processes embodied in legislation written in plain English; identifies what plans should be made and what should be the processes, including stakeholder and community participation and consultation, for the making of those plans; sets out a development proposal assessment and decision making framework that promotes the environmental, economic and social needs of the State; identifies and sets out the role of, processes for and accountability of each body undertaking decision making concerning development proposals and how such decisions can be made in a timely fashion; sets out the basis for stakeholder and community participation in the development proposal decision making process; sets out how other matters in the present planning system not listed above should be dealt with; P romotes the maximum use of information technology in: making and processing of development proposals; availability of information to development proponents and the community about the assessment processes for and determination of individual development proposals; and maximising the availability of government held information about individual parcels of land through a single electronic access point; and A ny other matters that the Planning System Review considers should be included in their recommendations that are not otherwise dealt with the above.
4.
5.
6.
(As published in the Issues Paper December 2011)

143
Notes
144
Notes
NSW Planning System Review

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The Way Ahead for Planning in NSW Recommendations of the NSW Planning System Review

Volume 2 Other Issues

About the Authors

Letter to the Minister from Joint Chairs

The role of the Minister

The role of the Department

The compliance role of the Department

Accountability and planning agreements

Content of Local Infrastructure Plans

Accumulated local infrastructure funds

Contributions appeals to the Land and Environment Court

Funding for the Department of Planning and Infrastructure

Funding information technology in a reformed planning system

Funding the Planning Commission

Adjustment of development application fees

Development contributions for Universities

The Spatial Information Act

The Sustainable Planning Act additional matters

Alternative Decision-making processes

Amendments to development proposals during assessment processes

Architectural review and design panels

Assessing development proposed by public authorities

Assisting elected councillors in development decision making

Availability of assessment reports

Certification of code assessable development proposals

Certification of code assessable development proposals

Changes to Local Land-Use Plans

Conditions of development consent Categorising the elements of a development consent

The use of template or default conditions of development consent

Trial periods for development consents

Requiring security bonds as a condition of consent

Public interest conditions

Definitions in the Sustainable Planning Act

Demolition limitations on development approvals

Determining development proposed by public authorities

Development applications with minor code non-compliances

Development to fit the exempt and code assessable classifications

Existing uses: changes, expansion or intensification

Independent Hearing and Assessment Panels

Independent Hearing and Determination Panels

Joint Regional Planning Panels

Land owners consent

Model delegations for development decision making in local councils

Modifications to existing approved development

Names for applications to reflect purpose

Plain English guide to the classification of development

Potential cross border impacts

Preamble to the Sustainable Planning Act?

Removing consistency as a design criterion in assessments

Stop the Clock Provisions

Verification of the stated development application values

The Land and Environment Court additional matters

Requiring concurrence authorities to defend their delay or refusal

Costs orders application amendment during the appeal process

Extension of orders able to be made in remedy or restrain matters

Commissioners assisting Judges in Class 4 matters

Class 4 matters and related common law issues

Revocation of development consents

Challenges to validity of development consents

Councils additional matters

Drafting precision for orders

Strict liability penalty notice offence false or misleading information

Environmental Impact Statements