The Local Government and Planning Legislation Amendment (Political Donations) Act 2008 (NSW), due to commence on 15 September 2008, will introduce far-reaching obligations on proponents of development to disclose political donations. Councils will have new obligations to receive and make publicly available the disclosed information, and must now record how Councillors vote on applications.
How does this affect you?
Disclosure of political donations and gifts will now be required in a number of situations:
- when submitting a planning application, applicants will be required to disclose gifts and political donations made by them (or by a related body corporate) to a local Councillor or candidate for election to Council in the relevant local government area;
- donations or gifts which have been made by any person who has a "financial interest" in such an application must also be disclosed, where the applicant is aware, or ought to have been aware, that the donation was made and was reportable; and
- disclosure of donations or gifts will also be required whenever a party makes a submission, such as an objection, to a planning application submitted by someone else (including a competitor).
When is disclosure required?
Disclosure is required when a "relevant planning application" is made, namely:
- a formal request to the Minister, a council or the Director-General to initiate the making of an environmental planning instrument or development control plan in relation to development on a particular site; or
- a formal request to the Minister or the Director-General for development on a particular site to be made State significant development or declared a project to which Part 3A applies; or
- an application for approval of (or modification of) a concept plan or project under Part 3A; or
- an application for development consent under Part 4 (or for the modification of a development consent); or
- any other application or request under or for the purposes of the Act that is prescribed by the regulations as a relevant planning application. (No other applications or requests are prescribed at this stage).
Who is required to make the disclosure?
Disclosure must be made by:
- a person who makes a relevant planning application; and
- a person who makes a "relevant public submission" in relation to an application. This will include any written submission objecting to or supporting a relevant planning application or any development that would be authorised by the granting of the application.
What is required to be disclosed?
The legislation requires the disclosure of all "reportable political donations" and gifts made to any local Councillor (or candidate for election) by any person with a financial interest in the application. It also includes gifts made to Council employees. Key elements of the obligation are:
- reportable political donations include those of or above $1,000 (or smaller donations totalling $1,000 or more);
- gifts include a gift of money or the provision of any other valuable thing or service for no consideration or inadequate consideration;
- all donations or gifts made within the period commencing two years before the application or submission is made and ending when the application is determined, must be disclosed.
An applicant is also required to disclose all reportable political donations and gifts made by any person with a "financial interest" in the application. A person will have a financial interest if:
- they are the applicant or the person on whose behalf the application is made;
- they are an owner of the site to which the application relates or have entered into an agreement to acquire the site or any part of it; or
- they are "associated with" a person referred to above and are likely to obtain a financial gain if development that would be authorised by the application is authorised or carried out. Persons will be "associated with" each other if they carry on a business together in connection with the relevant planning application or they carry on a business together that may be affected by the granting of the application. They will also be associated with each other if they are related bodies corporate.
How is disclosure to be made?
Disclosure is to be made in the planning application or submission, or in an accompanying statement. Donations or gifts made after the planning application has been made (but before it is determined) must also be disclosed.
Councils and the Minister must disclose reportable political donations and gifts on their websites, within 14 days of the disclosure being made.
Effect of non-disclosure
It is an offence to fail to disclose a political donation or gift that a person knows, or ought reasonably to know, was made and is required to be disclosed. The use of the phrase "ought reasonably to know" expands the disclosure obligation and effectively creates an obligation on applicants to make inquiries of their associates as to whether reportable donations or gifts have been made.
The maximum penalty for failure to disclose is $22,000 or imprisonment for a period of 12 months, or both.
Recording councillor voting on planning matters
Amendments have also been made to the Local Government Act 1993 in relation to recording voting on planning matters.
General Managers will now be required to keep a publicly available register which identifies those councillors who supported a planning decision and those who opposed (or are taken to have opposed) the decision. For the purpose of maintaining this register, a division is required to be called whenever a motion for a planning decision is put at a meeting of the council or a council committee.
This applies to decisions made by councillors in relation to development applications, environmental planning instruments, development control plans and development contribution plans.
Want to know more?
Please contact us if you would like more detailed advice on your disclosure obligations, or any other aspect of these amendments.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.