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 remain unclear.

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 Exposure Bills.

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 rights. [2.0]

Ministerial Discretion

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 include:

· The power to make or amend a strategic plan or policy as the Minister sees fit;

· 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. [3.0]

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. [4.6]

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.

Appeals

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. [6.0]