Posted on July 4, 2013 by Frances Tse

Minister’s powers and discretions under the exposure draft Planning Bill 2013

The ‘A New Planning System: White Paper‘ (White Paper) is being hailed as providing greater opportunities for community participation in the planning process, in part through the proposal for adoption of a Community Participation Charter. However, the exposure draft of the Planning Bill 2013 (Planning Bill)  gives the Minister for Planning many broad powers and discretions which would enable the Minister to take action which could facilitate development without public consultation.

Some of the key powers and discretions that the Minister is proposed to be granted under the Planning Bill are as follows:

Strategic plans

• NSW planning policies, regional growth plans and subregional delivery plans submitted to the Minister (after community consultation) may be modified as the Minister considers appropriate before the plan is made, without further consultation
• The Minister may amend strategic plans, including local plans, without consultation, and without complying with any of the other normal procedures for plan making in certain circumstances such as in order to deal in an expeditious manner with matters that give effect to strategic or infrastructure plans or that are of State, regional or subregional significance
• The Minister may make, amend or replace any provision of a local plan that is not a planning control provision by way of an order made by the Minister that is published on a specified NSW planning website (Ministerial planning order)
• The Minister may make, amend or replace any provisions of a local plan without consultation in certain circumstances, including in order to give effect to other strategic plans or to allow development the subject of a strategic compatibility certificate (being development which does not comply with local planning controls but complies with higher order strategic plans) to be carried out

State significant development and State infrastructure development

• The Minister may, by Ministerial planning order, declare specified development to be  State significant development or State infrastructure development
• The Planning Bill has the effect that if consent or approval is granted by the Minister for development that the Minister claims is State significant development or State infrastructure development, then the development is taken to be that type of development, even if there was an error in the process of declaring the development to be of that type

Public priority infrastructure

• The Minister may, by Ministerial planning order, declare particular development  to be public priority infrastructure
• Development for the purposes of public priority infrastructure may be carried out without any planning approval under the Planning Bill
• The Minister may, by an instrument published on the NSW legislation website, make or amend the planning control provisions of a local plan without the need to comply with any condition precedent relating to the making or amendment of those provisions, so as to change the land use and development controls for land in the vicinity of the public priority infrastructure, and zoning land to permit the infrastructure

Consultation, concurrence and other legislative provisions

• The Minister may amend the planning control provisions of a local plan to remove any consultation or concurrence requirement
• The Minister may amend the planning control provisions of a local plan for the purpose of imposing additional or alternative environmental impact assessment requirements, or to prescribe matters relating to the assessment, determination or carrying out of that development

The above powers and discretions, when added to reforms regarding complying development and code assessed development, which do not involve community consultation, cast significant doubt on the true extent to which the community can be engaged in the planning process under the proposed Planning Bill.