Council decision making and independent panels

29 May 2014

Provides an understanding of the motivators for the evolution of panels in the development assessment process in New South Wales.

Executive Summary

There has been a recognition nationally of the importance of planning to the economy in general, and particularly to housing supply, and hence the importance of improving the efficiency of the development application process. Over the last 15 years, there has been an increasing use of panels by NSW councils in the development application (DA) process – both “internal” panels staffed by officers and or councillors, and independent panels comprising of external experts and community representatives.

These collaborative approaches have provided increased transparency, integrity and rigour in the development assessment process. The panels can be used to provide advice to the applicants, objectors, council officers and councillors on individual DAs at various stages during the assessment process and or to determine the development application. For example, panels can be established:

• To provide advice to the applicant at the pre-lodgement stage including on design matters

• To provide advice upon lodgement or once the submissions have been received

• To provide advice on the design of the development at the pre-lodgement stage or during the assessment process

• To peer review the officers’ assessment and recommendations

• To make the determination or to provide advice to those making the determination

• To review decisions as part of the post determination mediation/conciliation stage

• To provide advice to the councillors or senior officers on policy and practice matters.

Currently 6 councils -Canterbury, Fairfield, Liverpool, Sutherland, Wollongong and Shellharbour - have established independent hearing and assessment panels, which provide advice on development applications to council decision makers. Another 7 councils – Holroyd, Lane Cove, North Sydney, Manly, Mosman, Waverley and Warringah - have independent development assessment panels with responsibility for determining DAs. Blacktown Council is in the process of setting up an independent panel. Each of these councils’ independent panels has been established under the provisions of the Local Government Act 1993, with the council responsible for their procedures.

Other types of panels have also been established by the NSW State Government to determine regional and state significant developments as well as to deal with certain planning matters. The State Government in South Australia, Victoria and Western Australian Governments has also established similar panels. Local councils in South Australia are required to establish panels and delegate all development applications to either a panel or staff for determination.

The cumulative impact of a number of factors has led to the establishment of the independent panels in NSW. Population pressures with increased densification in brownfield areas and the spread of land releases in Greenfield areas have resulted in increased numbers of controversial developments and increased pressure on councils. Regulatory pressure from the both Federal and State governments has placed a focus on the efficiency and effectiveness of councils’ development approval processes with strong endorsement for the establishment of independent panels. Panels have also been recommended by ICAC and the NSW Land and Environment Court to reduce corruption risks and the costs associated with legal challenges.

Where the independent panels are considered to be a council’s body, they can be seen as a partner in the council’s processes. This partnership can assist in removing the conflicts associated with the multiple roles of councillors as decision maker and advocate, and eliminate some of the corruption risks, particularly when the panel takes over the decision making role. This partnership can also take some of the pressure off assessment officers and can contribute to performance development for these officers. The threat from the planning reforms interfering with this partnership has led to some councils bringing forward the establishment of their panels so that they can operate under the Local Government Act 1993 rather than the provisions in the planning act.

The research examined the procedures and processes applied by different councils and the implications. Typically the panels are made up of a chair, 2 experts and a community representative. The panel members are rotated to avoid regulatory capture. There is a high level of discretion as to what DAs are referred to the panels, but the criteria tend to be based on scale, the number of “unresolved objections”, if there is the potential for conflict of interest or if significant variation from standards. The panel procedures include a review of the assessment report and recommendations, a site visit followed by a public hearing and then in a closed meeting, to arrive at a recommendation or decision. The public hearing tends to be informal with discussion with objectors and applicants as to options to reduce conflict. An outline of sound practice is included in the report.

While the panels have cost implications depending on the number of matters dealt with, there are also savings from the use of independent panels associated with reduced council meeting times, reduced DA processing timeframes and reduced risk of court challenges. The use of independent panels also has a number of performance benefits in terms of strengthening the assessment process, providing for additional community engagement and reinforcing the integrity of the decision making process. Importantly the panels provide an additional opportunity in the assessment process for the community and applicants to engage and allow for their views to be considered, increasing procedural fairness. Surveys of stakeholders indicated strong support for this additional engagement. These benefits are maximised where the panel also makes the determination.

There are also other opportunities to improve the planning process through the use of panels. Independent panels could be used earlier in the DA process at the pre-lodgement stage as well as in the strategic planning process rather than just at the end of the DA process – effectively at the end of the pipeline. This would have the potential to improve the effectiveness of community participation upfront and lead to better outcomes for all participants. In addition, the use of panels as part of the strategic planning process could reduce the need for panels at the DA stage as there would be less need for variations from the planning controls and the community would have a better understanding as to what can be expected to be developed in their area with fewer unresolvable objections.

To some, the DA process is currently seen to be planning policy on the run. In a way, the need for panels as an independent arbitrator at the DA stage is a barometer on the issues with the strategic planning. While independent panels can’t fix the problems of poor strategic planning, in the short term these panels can help facilitate the resolution of issues arising from uncertainty as to what can be developed in the area. The feedback from independent panels can also play an important role in improving the strategic planning framework for local councils. In this way, they can assist in the move towards more transparent, efficient and effective planning in NSW.

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