LEPs: new powers for Councils, new appeal rights for proponents
Day two of the Local Government Association conference opened with the Minister for Planning and Infrastructure declaring the government “is committed to returning local planning powers to local councils and their communities“.
The announcement must be qualified by reference to the Department’s Planning Circular PS 12-006 of 29 October 2012 (Circular). The Minister has not promised to allow Councils open slather on their LEPs. Under section 23 of the Environmental Planning & Assessment Act (Act) the Minster can delegate certain powers to Councils. His announcement, as detailed in the circular, is that some powers under section 59(2), (3) and (4) of the Act will be delegated to Councils.
The types of LEPs the making of which the Circular states will be “routinely delegated” to Councils are:
- mapping alterations
- section 73A matters (amending references to documents and agencies, minor errors and anomalies)
- the reclassification of land
- heritage LEPs where they are supported by the Office of Environment and Heritage
- spot rezonings where they are consistent with an existing endorsed strategy
- other matters of local significance determined by a gateway determination.
The Department has apparently written to Councils advising of the delegations. Councils must formally accept that delegation before the Department will issue an authorisation concerning any individual draft LEP.
The Circular contemplates that the making of an LEP may be delegated within Council to the General Manager or another officer such as the Manager of Planning.
Where the delegation is granted, the Council will liase directly with the Office of Parliamentary Counsel to draft the instrument instead of having to go through the Department. Council will also be responsible for notification and community consultation.
The announcement is not all positive for Councils however. Previously, if a Council was approached by a proponent for a planning proposal which would then go to gateway determination, and the Council declined the request, the proponent had little recourse.
The Minister’s announcement confirms that where a Council does not support a planning proposal, or where the Council has failed to indicate whether or not it supports the proposal within 90 days, then the proponent can appeal this decision to the Regional Planning Panel, or in the case of the City of Sydney, the Planning Assessment Commission (PAC).
The final determination on such an appeal is with the Minster, guided by advice from the PAC. This constitutes the gateway determination.
Following a gateway determination a proponent or Council may request the Minister to alter a gateway determination, seeking to prevent the proposal from proceeding; resubmitting the proposal; or imposing requirements different from those in the original determination.
Two new documents have been prepared to assist proponents and Councils with the amendments: A Guide to Preparing Planning Proposals and A Guide to Preparing Local Environmental Plans. Both are available on the Planning and Infrastructure web site on the Gateway Process page.
The Environmental Planning & Assessment Regulation 2000 has been amended to allow the charging of certain fees for the reviews set out above.
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