Australia: Independent Hearing Assessment Panels will allow councillors to focus on their constituents

Last Updated: 1 September 2017
Article by Breellen Warry, Peter Holt, Joseph Monaghan, Gerard Timbs and Jenny Humphris

Most Read Contributor in Australia, August 2018

In this article we outline the key elements of the new Environmental Planning and Assessment and Electoral Legislation Amendment (Planning Panels and Enforcement) Bill 2017.

Independent Hearing Assessment Panels (IHAPs)

Independent Hearing and Assessment Panels will become mandatory for all councils in the Greater Sydney Region1 and Wollongong, following the assent of the Environmental Planning and Assessment and Electoral Legislation Amendment (Planning Panels and Enforcement) Act 2017 (Planning Panels Act) on 14 August 2017, ostensibly to guard against corruption and to lead to better planning decisions. The majority of the provisions of the Planning Panels Act also commenced on 14 August 2017.

From 1 March 2018, all councils within the Greater Sydney Region and Wollongong will be required to set up a local planning panel.

The Planning Panels Act

Prior to the passing of the Planning Panels Act, the implementation of a local planning panel was voluntary. However, this was not taken up by the majority of the local government authorities within the Metropolitan regions. Following a series of high profile corruption issues surrounding the improper approval of development applications by councillors and council staff, the NSW Government has sought to make planning panels mandatory in the Greater Sydney Region and the City of Wollongong through the Planning Panels Act.

The majority of the Planning Panels Act commenced on 14 August 2017, however Schedules 1 [4] and [11] and Schedule 3 are not in force.2

Current IHAPs operate along similar lines, but procedures and panel member format can vary from council to council. All new IHAPs required to be established by 1 March 2018, will comprise of 3 independent experts and a community member and follow a standard model. The panels will be subject to a code of conduct and they will operate under statutory rules.

The Department of Planning and Environment will establish a pool of expert members which will be approved by the Minister for Planning. Councils will be able to select their expert member for their panels from the pool and they will responsible for the appointment of community members.

Benefits of IHAP

Other state governments, including Western Australia, Victoria, South Australia have established similar development assessment panels.

Having an IHAP benefits councils, its councillors and its constituents. Wollongong and 15 other Sydney Metropolitan Councils are already using IHAPs.3

There are a number of benefits in having an IHAP. These benefits include:

  1. The de-politicisation of contentious developments. Politically sensitive developments such as 'new generation Boarding House' development applications can be difficult to approve in a political environment. Removing this pressure allows Councillors to represent and voice the concerns of their constituents, while allowing an independent panel of decision makers to consider all of the factors of the proposed development without the political pressures that Councillors face
  2. Reducing conflicts of interest and risk to Councillors. Councillors are elected because they know people within their community and represent the community's interests. Making decisions on development applications increases the risk to Councillors falling foul of their Code of Conduct and the conflict of interest provisions in the Local Government Act 1993. IHAPs reduce the risk to Councillors and they will also be used for development applications where a Councillor has indicated that they have a conflict of interest
  3. Increasing community representation. The panel must include a community representative for the local government area (LGA) and if the LGA has wards, a representative from that ward. This ensures that community issues are heard and included in any decision made on a development application. They also provide for additional opportunities for the applicant and the community to engage and allow for their views for be considered, which increases procedural fairness
  4. Cost savings. IHAPs can assist in the reduction of the number of appeals to the Land and Environment Court, reducing the legal costs associated with these types of appeals and the cost to local councils associated with assessing development applications
  5. Time saving efficiencies. Councillors are able to reduce meeting times and deal with other pressing matters. This enables councillors to focus on the delivery of delivery its core business services and allows councillors more time to consider the 'big picture' issues.

Types of development that IHAPs determine

IHAPs consider development applications that are:

  • over a particular value (more than $5 million and less than $30 million)
  • receive more than 10 objections, where there is a conflict of interest
  • are accompanied by a voluntary planning agreement
  • involve a departure from Development Standards; or
  • considered or perceived to be at high-risk of corruption.

Conclusion

While it is voluntary for councils outside of the Greater Sydney Region and Wollongong it is anticipated that more regional councils will voluntarily appoint IHAPs of their own once they observe the benefits that their urban counterparts enjoy from the use of IHAPs.

Footnotes

1The 'Greater Sydney Region' includes the local government areas of Wollondilly, Blue Mountains and the Hawkesbury, but excludes Wyong and Gosford.

2 These provisions deal with the functions of a consent authority which can be conferred on a Joint Regional Planning Panel, and deals with the insertion of Schedule 7 into the State Environmental Planning Policy (State and Regional Development) 2011. Schedule 7 concerns development for which regional panels may be authorised to exercise consent authority functions of councils.

3 This includes the newly amalgamated Councils of Northern Beaches Council and Georges River Council, which included former Councils that had IHAPs and the amalgamated Councils of Strathfield Council, Mosman Council, Waverley Council which allowed the IHAPs to determine applications. Whereas some councils such as Liverpool Council only gave their IHAPs power to make recommendations.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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Authors
Peter Holt
Gerard Timbs
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