In April 2013 the Government of NSW released a White Paper and two Exposure
Bills detailing its proposals for the reform of the State planning laws. These
proposals included significant changes to the decision-making powers of several
bodies, and reforms to development assessment.
Reform of the planning system continues to be a work in progress. In
response to concerns voiced by the community and key stakeholders, including
local government, on 19 September 2013 the Minister for Planning announced a
number of changes to the proposals set out in the White Paper. However
community and environmental groups have continued to argue that fundamental
problems remain. Specific details of the changes announced by the Minister
This paper examines the distribution of decision-making powers under the
proposed system with particular reference to Ministerial discretionary powers,
development assessment, and appeals. Commentary from selected stakeholders in
response to the White Paper provides some analysis of the proposed system;
these comments are too complex and extensive to be encapsulated in this
summary. While a broad cross-section of stakeholders was selected, this paper
does not purport to represent all stakeholder positions on the White Paper and
Depoliticisation of decision-making
The depoliticisation of decision-making, under which planning decisions are
increasingly made by experts and independent bodies rather than elected
officials, is a “key transformational change” of the planning
proposals. This principle underlies a number of individual reforms which
attempt to make planning a technical exercise, rather than a political process.
Government publications identify these changes as the introduction of a
track-based DA process, the increased use of expert panels and wider appeal
The Minister and Director-General of the Department of Planning are able to
exercise a number of planning functions under the Exposure Bills. The breadth
of Ministerial powers specified in the draft legislation has proven
controversial, with several stakeholders commenting on a perceived lack of
oversight or accountability. Significant powers available to the Minister
· The power not to make a strategic plan;
· The power to declare development to be State significant, thus becoming
the consent authority for the development;
· The power to declare public priority infrastructure, which then can be
carried out without additional approval or consent;
· The power to appoint a regional planning panel as a consent authority in
the place of a council; and
· The power to make wide-ranging regulations, including exempting any
persons or organisations from any provisions of the planning legislation.
A stated goal of the White Paper is increasing the proportion of development
assessment conducted by independent experts. To this end the Government will
“encourage” councils to establish independent assessment panels and
have them assess all applications. [5.0] It also intends to widen the
scope of complying development (which is automatically assessed against
predetermined standards by a certifier). [4.5]
The development assessment process will undergo major changes under the
Government’s proposals, with the introduction of a track-based
development scheme including a new stream to be known as code-based assessment.
Under this assessment stream, certain kinds of low-impact development (which
includes mixed-use developments, commercial buildings, and up to 20
villas/townhouses) will be assessed against pre-determined development codes.
Development that meets the standards set out in these codes must be approved.
The codes will be based upon model development codes set out by the State
government and subregional planning boards, which can be modified by councils.
The White Paper proposed that 80% of development would either be assessed as
complying or code-assessable; a target that has now been revised with
development codes to be used only in nominated growth areas. This development
assessment stream has been criticised by a number of submissions on the ground
that it removes the right of councils and communities to have any input into
the development assessment process.
Under proposals in the White Paper, appeal and review rights for proponents
of development would be expanded. Appeal rights available to the community
would remain the same. An additional “very fast track” appeals
process will be available for proponents of small developments. For consent
authorities, the increased availability of appeal rights would result in less
certainty that their determinations would be final.
The Planning Bill also contains wide-ranging exemptions from judicial review
for the exercise of certain planning functions, and specifies that other
functions under the Bill are “not mandatory” and accordingly cannot
be the grounds for seeking judicial review. The Law Society has submitted that
the relevant section of the Bill may be open to constitutional challenge.