Australia: New local planning panels for Sydney councils and update on staged DAs

New legislation has commenced in NSW requiring all local councils in the Sydney area1 to establish local planning panels for their local government areas by March 2018 (Planning Panels Act).2 This update provides further details about these changes and the timing of their implementation.

Mandatory local planning panels are being introduced to "bring expertise, transparency and integrity"3 to the assessment of development applications (DAs) at a local level. Independent expert panels have been used for several years by some councils, for example, Wollongong, Sutherland and Lane Cove Councils. Liverpool Council is a particular example where its independent expert panel has been operating since 1997.4

Under the new provisions, where a local planning panel has been constituted, councillors cannot exercise any consent authority functions. This includes, for example, determining a DA or modification to a DA. Instead, those functions sit with either the local planning panel, a delegated council officer or the joint regional planning panel (JRPP). In addition, the Minister for Planning (Minister) can direct local councils (through section 117 directions) as to which DAs are to be determined by an local planning panel, other than those DAs that already sit with a JRPP.

It is proposed that the local planning panels will be comprised of three independent persons:

  1. an independent chair, with relevant expertise that includes law or government and public administration, approved by the Minister;
  2. two other independent persons with relevant expertise,5 approved by the Minister; and
  3. a representative of the local community who is not a councillor or mayor.6

The Minister for Planning, Anthony Roberts, said that the local planning panels would establish "a transparent and accountable process in place when assessing DAs of significant value, where there is a conflict of interest for the council or developer, or when they are of a sensitive nature".

Although some argue that local planning panels will strip local councils of their decision making powers from elected councillors, others in the development industry have welcomed the panels. For example, the Urban Taskforce agrees that the compulsory establishment of local planning panels will "ensure a level playing field for everyone. Having a central pool of experts will also ensure effective use of resources and that all panel members will have up to date knowledge of the planning rules".7

Councils are not required to have their local planning panels in place until 1 March 2018.8 Until a local planning panel is in place, councillors can still exercise consent authority functions such as approving DAs.

Changes to JRPP

The Planning Panels Act also introduces changes to JRPPs, which have not yet commenced. Schedule 4A of the Environmental Planning and Assessment Act 1979 sets out the classes of development which are to be determined by a JRPP. This is to be repealed and replaced by Schedule 7 of State Environmental Planning Policy (State and Regional Development) 2011. This will mean that the JRPP development thresholds can be changed without an act of NSW Parliament.

The primary changes are:

  • the threshold for general development has been increased from a capital investment value (CIV) threshold of more than $20 million to a threshold of more than $30 million; and
  • previously, an applicant could request that development with a CIV of more than $10 million but less than $20 million which had not been determined by a local council within 120 days be determined by the JRPP. This upper threshold of $20 million has been increased to $30 million.

Staged DA update

In July 2017, we reported on the case of Bay Simmer Investments Pty Ltd v State of New South Wales [2017] NSWCA 135 regarding staged development applications.

In that case, the NSW Court of Appeal declared a staged development consent invalid on the basis that:

  1. construction impacts should be and were not considered at the concept proposal stage, despite the concept proposal not approving construction; and
  2. it could not properly be considered a staged DA, because it related only to a concept proposal, and did not include a detailed proposal for a separate part of the site. To be a staged DA, the initial concept proposal must be followed by at least two detailed DAs, each for separate parts of the site.

That decision prompted the NSW Department of Planning and Environment to release a draft bill which allows development impacts to be considered at the 'Stage 2' development consent phase, rather than the concept approval stage, and enables a concept only DA to be followed by a single DA for construction. The draft bill was passed through NSW Parliament on 8 August 2017 without amendment and has now commenced.

Footnotes

1 The Sydney area comprises the Greater Sydney Region and City of Wollongong (see s23J(2), Environmental Planning and Assessment Act 1979). The 'Greater Sydney Region' is defined in Schedule 1 of the Greater Sydney Commission Act 2015 and includes all local council areas up to the boundaries of Pittwater, Hornsby, Hawkesbury, Blue Mountains, Wollondilly, Campbelltown and Sutherland.

2 Environmental Planning and Assessment and Electoral Legislation Amendment (Planning Panels and Enforcement) Act 2017.

3 Ministerial Media Release: The Hon. Anthony Roberts, IHAPs to be introduced for all Sydney councils (8 August 2017) NSW Department of Planning and Environment

4 Susan Thompson and Paul Maginn, Planning Australia: An Overview of Urban and Regional Planning (Cambridge University Press, 2nd Ed, 2012) 49.

5 Relevant expertise means planning, architecture, heritage, the environment, urban design, economics, traffic and transport, law, engineering, tourism or government and public administration – see Environmental Planning and Assessment Act 1979, s23K(7).

6 Environmental Planning and Assessment Act 1979, s23K.

7 The Urban Developer, Councils Stripped of DA Powers in NSW (10 August 2017)

8 See clause 150 of Schedule 6, Environmental Planning and Assessment Act 1979.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Felicity Rourke
Rebecca Hiscock
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Emails

From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.