In October 2019, the Minister for Planning and Public Spaces, the Hon Rob Stokes MP, asked the state’s Productivity Commissioner to conduct a review of the Independent Planning Commission NSW. The Terms of Reference for the Review are available here.
Mr Peter Achterstraat AM finalised his Review in December 2019, which examined, among other things, whether it is in the public interest to maintain an Independent Planning Commission (IPC) and the operations and processes of the Commission in the State’s planning framework.
On 1 February 2020, the Minister announced the NSW Government had accepted all the Review’s recommendations. Read the Review report here. The Minister’s media release is available here.
“The Commission has done a lot under the leadership of Professor O'Kane since it was established almost two years ago to increase transparency, foster greater community participation and build trust in our decision-making processes for state significant development in NSW,” Mr Duncan said.
“Significantly, the Review found that it is in the public interest to maintain the Commission as an independent decision-maker for the state’s most complex and contentious projects. It also made some very important recommendations relating to the Commission’s resourcing and operations.
“But we don’t shy away from the fact that there is still room for improvement, particularly around timeliness. Of paramount importance, though, is that our decisions are fair and legally robust.
“Moving to implement these recommendations in full will be key to establishing the Commission as an exemplar consent authority which is trusted by government, industry and the community to make planning decisions in the best interests of the State of New South Wales and its people,” Mr Duncan said.
1. What is the NSW Government’s response to the Review?
On 1 February 2020, the Minister for Planning and Public Spaces, the Hon Rob Stokes MP, announced the NSW Government had accepted all the Review’s recommendations. Read the Review report here. The Minister’s media release is available here.
2. How long will it take to implement the Review’s recommendations?
Mr Peter Duncan AM will lead the implementation of the recommendations from the Review. Mr Duncan has been appointed Acting Chair of the Commission until 31 July 2020
while Professor Mary O’Kane AC leads an independent expert inquiry into the 2019-2020 bushfire season alongside former NSW Police Force Deputy Commissioner Dave Owens APM.
The Commission and Acting Chair Mr Duncan have committed to implementing the recommendations in full to build confidence in the Commission and the decisions it makes. The most significant reforms, which seek to strengthen the Commission’s independence and governance and improve its overall performance, will be implemented by mid-2020. Some of the other reforms, including technological changes to support improved processes and efficiency. will extend beyond mid-2020
3. Has the Commission’s role in the planning system changed post the Review?
The Review found that it is in the public interest to maintain the Commission as an independent decision-maker for the state’s most complex and contentious projects. We will continue to determine state significant development (SSD) applications in circumstances where:
* There are 50 or more unique public objections to the SSD application; and/or
* The Applicant has made a reportable political donations disclosure; and/or
* The local Council has objected to the SSD application and has not rescinded that objection following exhibition.
In circumstances where a Council has rescinded its objection following exhibition of the application – and Council’s objection was the only reason for the Commission to be the consent authority – the SSD application would be delegated back to the Department of Planning, Industry & Environment (the Department) for determination.
The Commission will also continue to be the consent authority for modification applications in circumstances where the applicant has made a reportable political donations disclosure. All other modification applications will be delegated to the Department for determination.
The Commission will independently determine each application on its individual merits and in accordance with legislation and current government policy.
The Commission will, however, no longer be asked to provide advice on development applications. The Minister has advised that referrals for to the Commission for advice in relation to development applications (under section 2.9 (1)(c) of the Environmental Planning and Assessment Act 1979 (EP&A Act)) will be discontinued – except for those related to functions of the Mining and Petroleum and Gateway Panel, which remains a subcommittee of the Commission.
The Minister will still be able to request advice from the Commission on other planning matters, including Gateway Determinations.
4. How will the composition of the Commission change?
Over coming months, the Commission will transition to a smaller group of Commissioners with core decision-making skills, as well as existing expertise and experience in planning-related fields.
5. Has the Commission’s independence been weakened by the Review?
No. The Commission’s independence will, in fact, be strengthened as a result of the Review’s recommendations – particularly in relation to the Commission’s resourcing and operations. The statutory independence of the Commission will be reinforced by formally establishing the Commission as a ‘separate agency’ under the Government Sector Employment Act 2013.
These new arrangements will allow us to improve our internal governance arrangements, with clear reporting lines from staff within the Office of the Independent Planning Commission, through management, to the Chair of the Commission. The Commission will also be authorised to recruit staff in its own right, whereas staff have previously been employed by the Department of Planning, Industry and Environment.
The Chair of the Commission will become the head of the agency, reporting directly to the Minister.
6. There’s been a lot of discussion about the Commission speeding up its decision-making process. How will the Commission ensure its decisions remain fair and legally robust?
The Commission has done a lot of work since it was established in March 2018 to increase transparency, foster greater community participation and build trust in its decision-making processes for complex and contentious SSD applications.
We don’t shy away from the fact that there is still room for improvement – particularly around timeliness. And we’re committed to working hard to meet new performance measures and timeliness targets that are to be set by the Minister.
The Commission’s top priority, though, is ensuring that our decisions are fair and legally robust – and the Commission is constituted to bring a high level of scrutiny, independence and transparency to this important task.
7. Has the Commission’s ability to seek independent expert advice been removed post-Review?
No. The Commission will still retain the capacity to seek independent expert advice to assist it in determining an SSD application, as and when the Commission deems necessary.
8. Will I still be able to participate in the Commission’s decision-making process?
Yes, absolutely! The Commission invites all those affected by development applications to provide their comments directly via written submissions with us or at our public meetings and public hearings. Interested individuals and/or groups are always encouraged to have their say on projects by providing written comments, which are treated with the same value as a verbal presentations.
We’re the first to recognise that not all our decisions will be popular. The Commission’s goal, though, is that by encouraging and promoting greater community participation in our cases and early in our deliberations, and by maintaining a very high level of independence and transparency, we can continue to build public trust in the Commission, our processes and the decisions we make.
9. Will there be changes to the Public Hearing process?
Yes. Notably, public hearings will be held in one stage –– the Multi-Stage Public Hearing process will not be used for any new cases that come to us for determination.
It’s important to remember that under the EP&A Act the Commission can only hold a public hearing at the request of the Minister. If such a request is made, the Commission must hold a public hearing; it is not discretionary.
It’s intended that public hearings will be more interactive and inquisitorial, with more forensic questioning and clarification by Commissioners.
We will continue to give advanced notice of the date, time and location of the public hearing and invite interested individuals/groups to apply to speak at the public hearing. The Commission also has powers to require certain people to attend the public hearing and to give evidence.
If a public hearing is held, merit appeal rights to the NSW Land and Environment Court are extinguished for both objectors and the applicant.
For more information, please see our new ‘Public Hearing Guidelines’.