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Recent Developments in Planning Legislation

Recent Developments in Planning Legislation

Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion.
Briefing Paper No. 16/2006 by Stewart Smith
Earlier this year significant amendments were made to the Environmental Planning and Assessment Act 1979. Perhaps the most controversial of these amendments were those relating to the Ministerial appointment of planning assessment panels to replace the role of local councils in determining development applications. Part 1 of this paper reviews the arguments for involving independent hearing and assessment panels in determining development applications. Part 2 of this paper looks at the assessment and determination of major projects.

Local government councilors have three main roles: establishing development standards through their role in preparing local environment plans; deciding whether to grant development consent to development applications; and acting as constituent representatives. The combination of these roles is unique to local government, and can create conflicting roles for councilors. The absence of a ‘separation of powers’, thus allowing councillors to both establish development standards and then assess applications against those standards, has been frequently criticised. This stems from the belief that a councilor’s policy role should be separated from their operational role. It has been suggested that either: local government delegate development assessment determination power while retaining the ability to call-in any application for determination by council; or an expert panel determines the application. It has been argued that independent hearing and assessment panels have the following benefits:
    • A mechanism for the assessment of development applications based on the rules of procedural fairness;
    • An independent and professional judgement on development applications;
    • A counterbalance to perceptions of bias decision making by councilors;
    • A focus on a non-adversarial process for resolving disputes between objectors and applicants.
Arguments against the introduction of independent panels include: they could weaken democratic accountability; whoever chose the members of the panel would exercise influence; it would increase bureaucracy and costs; and there may not be a sufficient number of panel experts to serve all councils.

Local government does not support delegating determination authority to an independent panel, and believes that any panel role should be restricted to an advisory capacity. In contrast, developers support the introduction of independent panels to determine development applications. With the passage of the Environmental Planning and Assessment Amendment Act 2006, the Minister for Planning has the power to replace a local council’s development determination function with either an independent panel or a planning administrator.

The Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 introduced provisions relating to major infrastructure and other projects into the Environmental Planning and Assessment Act. The legislative background to the determination of major projects is explained. Proposed amendments to the major projects legislation, and the introduction of a draft State Environmental Planning Policy (Infrastructure) are reviewed.