Australia: Planning Reform Update

Gadens have extensively reported this year on proposed reforms to planning laws that will significantly overhaul almost every aspect of the planning approval and certification process in NSW.

The Environmental Planning and Assessment Amendment Act 2008 (the Amendment Act) was assented to on 25 June 2008, and is being rolled out to commence in various stages.

Some further provisions of the Amendment Act commenced last week (on 3 November 2008) and important announcements were made by the state government, altering aspects of the reform package. In summary, the key developments have been:

• the establishment and commencement of the Planning Assessment Commission (PAC), but with reduced decision-making powers

• important changes relating to Joint Regional Planning Panels (JRPPs) have been announced, expanding their role in the planning system dramatically - thereby further reducing the functions and powers of councils

• the commencement of provisions enabling the accreditation of bodies corporate as accredited certifiers

• the commencement of further certification provisions, including changes to the notification requirements in relation to a change of principal certifying authority
  (PCA).

Establishment of the PAC and reduction of its scope

Under previous Planning Minister Frank Sartor, it was intended that the minister would only deal with critical infrastructure or projects of critical significance. All other major projects (as listed in the Major Projects SEPP) were to be dealt with by a Planning Assessment Commission (PAC). This would generally comprise a chair and a panel of between three and eight part-time members (holding office for up to three years), all having at least one area of expertise (such as planning, architecture, traffic, engineering, heritage, environment, land economics, law, or the like).

However, in media announcements this week Planning Minister Kristina Keneally announced that in an effort to depoliticise the planning process and to increase transparency and accountability, although the PAC's advisory role would be expanded, its decision making powers would now be limited to only the following major projects:

• where a developer has made a reportable political donation (of over $1,000) in the past two years (note that it is unclear whether this extends to circumstances where associates of the applicant have made a donation, or only where the applicant has personally made a donation)

• where the proposed major project is located in the Minister's electorate (which is currently the electorate of Heffron in south eastern Sydney)

• where there are other potential conflicts of interest such as a Minister's pecuniary interest.

The provisions of the Amendment Act relating to the PAC have now commenced.

Importantly, the Department of Planning will conduct the assessment and will make recommendations for the PAC to consider. The PAC will then have only 14 days to make a decision, failing which it must explain why further time is required, and its reasons must be made public. Minister Keneally recently stated that the average time for a decision on major projects is 155 days (nearly six months). Under the current reforms, she proposed to have 85% of major project approvals finalised within three months, 95% of approvals within five months and no approval to exceed eight months.

The PAC must also provide a final report to the Minister, the consent authority and any other relevant public authorities at the conclusion of its review (cl.286V of the Regulations). This final report contains the PAC's findings and recommendations, as well as a summary of any submissions received.

Despite former Minister Sartor's drive to prevent legal representation at PAC hearings, the Regulations do not contain any limitation on legal representation.

Increased role of Joint Regional Planning Panels

As discussed in our previous update, JRPPs (panels comprising three state government appointees with different areas of expertise and two local council appointees) were to assess fairly large scale development applications, having thresholds of:

• $20 million for commercial and retail developments; and

• $50 million for residential and mixed-use developments.

These thresholds have both been dramatically reduced to only $10 million. This means that many large developments that would have otherwise been dealt with by local councils will instead be dealt with by JRPPs, who have a majority of non-council members. In addition, the chair of the JRPPs will be a state government appointee, and the chair will always have the casting vote, tipping the scale away from the councils, in order to further depoliticise the decision process.

The assessment report and public consultation process will be conducted by the local council, however the decision will be made by the JRPP, not the council.

In terms of timing, it was announced this week that the provisions of the Act relating to JRPPs will not commence until July 2009.

An applicant who is dissatisfied with a decision of the JRPP can appeal to the Land and Environment Court.

Accreditation of corporate bodies

The definition of an 'accredited certifier' in the Act has now been modified so that an accredited certifier does not necessarily need to be a "person" (s.4). This means that it is now possible to appoint the local council or an accredited body corporate as a certifying authority, rather than just an individual accredited certifier. The practical consequence of this is that there will be a greater choice available when appointing a certifying authority.

Provisions relating to certification matters

Changing the principal certifying authority

Previously under the Act, people who wanted to change PCAs could do so by reaching an agreement between the original PCA and the new PCA and then notifying the board, the council and the consent authority. The amended provisions remove the need for the board to be notified where the PCA is going to be changed (s.109EA(1)(b)). There are also new notification requirements for a replacement of a PCA (cl.162 of the Regulations). The replacement PCA is now required to notify the consent authority and the council of their appointment within two days after the appointment occurrs.

There is also additional information required for a notice of appointment of PCA including:

• the name of the former PCA who has been replaced; and

• a statement that the former PCA agreed to being replaced.

Form of certificates

The amendments have changed the provisions relating to the information required to be contained in complying development certificates, compliance certificates, construction certificates, occupation certificates and determinations of applications for subdivision certificates.

Form of records of critical stage inspections

The amendments provide that the information to be contained in a record relating to critical stage inspections include:

• the identity and signature of the certifying authority that carried out the inspection and, for bodies corporate, the identity and signature of the person who carried out the inspection.

• if the certifying authority is an accredited certifier, the accreditation number of the accredited certifier and, for bodies corporate, the accreditation number of the individual who carried out the inspection (cl.162B of the Regulation).

Action that may be taken against a council following investigation

The amendments insert provisions enabling the Minister for Planning to suspend, in certain circumstances, a council's authority to exercise some or all of its functions as a certifying authority (s.117B). This power is available following an investigation under section 45 of the Building Professions Act, and may be exercised on the recommendation of the board made under s.117B and in consultation with the Minister for Local Government.

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.