Posted on November 10, 2016 by Megan Hawley

New Review Processes for Planning Proposals

There is no statutory right of appeal or review for a proponent who requests that a council make a local environmental plan in respect of the proponent’s land. However administrative procedures provide for a ‘pre-gateway review‘ by a planning panel if the council decides not to progress the plan.

The Department of Planning & Environment has recently modified the process for pre-gateway reviews and published a new ‘Guide to Preparing Planning Proposals‘ (Guide).

A pre-gateway review can be requested where a council has indicated it will not support the request to prepare a planning proposal for a local environmental plan, or where council has failed to notify the proponent whether it supports the planning proposal within 90 days of the request being submitted with all necessary information.

The new Guide now also allows a review to be requested if the council has failed to submit a planning proposal to the Minister for gateway determination within a reasonable time after the council has indicated its support for the planning proposal.

The review must be requested within 42 days of being notified that council doesn’t support the proposal (up from 40 days), or  90 days after the proposal was submitted to council if the proponent has not received any notification from council.

If council supports the planning proposal, it is expected that it will be referred for gateway determination within 42 days of the decision to do so. There is no time specified for when a review can be requested in respect of a delay in this regard, and proponent’s are encouraged to contact the Department’s relevant office.

The Guide now also makes it clear that on a review only the same application as was presented to council will be considered by the planning panel. Proponents cannot amend the proposal when seeking a review.

While reviews have always required consideration of strategic criteria, a new Strategic Merit Test has been developed which requires proposals to be assessed to determine whether they are:

  • consistent with the relevant regional plan or district plan (within the Greater Sydney Region), or corridor or precinct plans including draft plans released for public comment; or
  • consistent with a relevant local strategy endorsed by the Department; or
  • responding to a change in circumstances, such as new infrastructure or changing demographic trends not recognised in existing planning controls.

A proposal in respect of a change to planning controls which are less than 5 years old must clearly meet the Strategic Merit Test.

Site specific merit tests are then applied if the proposal passes the Strategic Merit Test.

There is also a ‘gateway review’ process which allows a council (when it is the relevant planning authority) or the proponent to request a review of a Gateway determination when the determination:

  • is that the planning proposal should not proceed;
  • requires the planning proposal to be resubmitted to; or
  • imposes requirements or makes variations to the planning proposal that the council or the proponent thinks should be reconsidered.

The review periods for Gateway Reviews are no later than 42 days after notification that the planning proposal will not proceed or needs to be resubmitted and in circumstances where the conditions imposed are considered to be inappropriate,  council or the proponent must notify its intention to request a review within 14 days of the determination. They will then have 42 days from the notification of their intention to request a review to formally apply for a gateway review to be undertaken.

Separate to the formal gateway review process, a council where it is the relevant planning authority, may request that a gateway determination be reconsidered or reissued at any time by contacting the relevant regional team within the Department.

A full length copy of the Guide can be accessed here.

Should you wish to discuss the Guide, reviews of plan making decisions or planning proposals more generally, please contact Megan Hawley, Partner by emailing megan.hawley@lindsaytaylorlawyers.com.au or call (02) 8235 9703.

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