Posted on October 23, 2013 by Megan Hawley

Planning Bill 2013 introduced – Our initial observations

The Planning Bill 2013 was introduced into the NSW Parliament yesterday. The Bill varies in some significant respects from the exposure draft. Here are our initial observations.

The Department of Planning claims that the amendments are in response to community concerns, and in particular address the following issues:

• retaining rights of community members to challenge major decisions, and to seek judicial review of decisions,
• strengthening the community participation charter and enhancing rights of individuals and groups, including requiring authorities to publish decisions and how they address decisions, and creating a panel to oversee community involvement,
• giving councils a greater role in determining what will be code assessable and scrapping the target of 80% of developments being code assessable,
• providing checks and balances on the exercise of functions by the Minister; and
• reinstating the role of the Heritage Council.

We will be reviewing the Bill (and associated Planning Administration Bill 2013) in detail over the coming days to determine whether concerns with the exposure draft of the Bill  raised by us in our previous blogs have been addressed.

• Minister’s powers and discretions under the exposure draft Planning Bill 2013,
• White Paper & Planning Bill 2013 – Key Changes to Building and Subdivision Regulation,
• Protection of Suburban Character under the White Paper,
• Changes to appeals processes under the New Planning System,
• Strategic Planning under the White Paper,
• Proposed Changes to Planning Agreements in Exposure Draft Planning Bill,
• Planning Reform White Paper Released

We will also review the legislation to determine whether any other changes have been made of significance. From our initial review, we note the following:

• The objects of the Bill have been amended and now include the promotion of transparent decision making. The inclusion of these words into the objects could affect the interpretation of other provisions.
• The Community Participation Charter has been amended to state that the community has a ‘right’ to be informed about planning matters that affect the community. Previously the Charter simply provided that the community should be provided with opportunities to participate in planning. However, it does not seem that that right to be informed will necessarily be honoured, other than where the Bill prescribes mandatory notification periods for certain planning functions.
• Some of the powers of the Minister in respect of the making of local plans have been watered down. For example, the Planning Bill does not contain the formerly proposed provision giving the Minister the power to direct that some other authority was the relevant planning authority for the making of provisions of a local plan where the Minister considered the council to not have carried out its functions satisfactorily.
• Whilst the Minister can still dispense with the preconditions to the making of a strategic plan due to a lack of adverse impact, previously this was the case if the Minister considered there was no adverse impact, but now the provision states that this can be done only where there is no such impact. This means that the test is now (arguably) objective rather than subjective as to whether or not there is such an impact. This could open up the Minister’s decision to a greater risk of challenge, however note our comments below in respect of judicial review.
• Independent hearing assessment panels may be given some consent authority functions under local plans.
• The Minister may, in a gateway determination specify that provisions of a local plan can be made by the council who is the relevant planning authority.
• The requirements for the content of planning proposals has changed. A planning proposal no longer needs to contain a justification for the proposal or explanation of its intended effect. However, regulations may reinstate similar requirements.
• The Bill now clarifies that all of the provisions of the local plan and any proposed local plan are relevant to merit assessment. This is significant as previously there was doubt about whether development guide provisions of a local plan were relevant.
• When determining a development application that is subject to merit assessment, the consent authority is additionally to have regard to any planning agreement that is or is to be entered into in connection with the development.
• Strategic compatibility certificates can now be issued by a regional planning panel or by the Director-General. However, the Director – General can only issue one if there are no more than 25 objectors to the issue of the certificate and the relevant council has not objected. Those constraints do not apply to the regional panel;
• The principles for infrastructure contributions have been deleted.
• Local infrastructure plans must now specify when contributions are to be applied to the purpose for which they were required.
• Councils now have 5 years to spend contributions and the period by which the Minister can extend that period is now unlimited.
• Whilst the provision has been amended, there remains a provision which severely restricts judicial review proceedings in respect of challenges to strategic plans, and approvals for state significant development, state infrastructure development and public priority infrastructure.

We will continue to review the Planning Bill and the associated Planning Administration Bill 2013 and provide further and more detailed commentary shortly.