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DAs no longer at the mercy of Sydney Councils

10-Sep-2017


In a major shift for development assessment, mandatory independent local hearing and assessment panels (IHAPs) will be introduced to Wollongong and Sydney metropolitan councils, to make decisions on development applications. This change aims to improve the efficiency and integrity of the determination process.

 

COUNCILLORS WILL NO LONGER DETERMINE DEVELOPMENT

New rules are now in place for certain development applications (DAs) submitted to Councils in the Greater Sydney metropolitan area and Wollongong local government area.  From September, DAs and applications to modify consents, will be determined by:delegates of the council (planning officers), IHAPs, and regional planning panels.

The councils that have an existing IHAP may continue to use them up until 1 March 2018.  By that date the Wollongong and Sydney metropolitan councils must have an IHAP operating under the new procedures.

 

WHY CHANGE?

The State government is introducing independent assessment to reduce the potential for political or corrupt influences in decision making, with the intent to lead to better planning outcomes. As a result, Sydney metropolitan & Wollongong councillors, including those to be elected on 9 September, will no longer make development decisions. However, these Councils will continue to make strategic decisions affecting development in their area, including the rezoning of land.

 

WHAT DO WE THINK?

In January, Urbis advised our clients of the NSW Planning Legislation Changes Ahead including the proposed introduction of IHAPs. At that stage, IHAPs were not proposed to be mandatory but the Minister could direct them to be made.  The final operational model and the provisions for mandatory IHAPs signals a stronger commitment to assessment transparency and procedural certainty.

For the councils that already have IHAPs it will be business as usual but under a new operational model.  For some councils, the new procedures will be more time consuming and may mean that some planning applications that were efficiently determined under delegation will now be determined by the IHAP. However, for the most, Urbis believes that removing politics from the decision making process will provide more transparency. 

Overall, Urbis is supportive of new legislation and looks forward to working within a clearer and more consistent development assessment process in Wollongong and the Sydney metropolitan area. However, we consider that the potential for corruption can extend to zoning decisions, particularly where development uplift may occur.  It is our view that there should be a stronger role for IHAPs to also enable the independent determination of planning proposals.

 

LOCAL DEVELOPMENT ASSESSMENT

Sydney and Wollongong

 

WHAT YOU NEED TO KNOW

Where will IHAPs operate?

  • Mandatory IHAPs will be introduced to all councils in the Greater Sydney metropolitan area (including Blue Mountains and Wollondilly) and Wollongong.
  • Mandatory local planning panels must be operational by 1 March 2018.
  • A single panel can operate for two or more councils and the Planning Minister may make a direction for that to occur.
  • Other councils in NSW may introduce panels, on a voluntary basis.
  • The Minister, at any time, may require a panel be made.

What if Council already has a IHAP?

There are 17 existing IHAPs (or similar) operating in Sydney councils, established under differing, council-determined frameworks.  Those councils that already have an IHAP can continue to use that panel until 1 March 2018.  However, from that date, the existing IHAP must be dismantled and a new IHAP, consistent with the new legislation and the Model Code of Conduct, must be operational.

What development will be determined by IHAPs?

IHAPs will determine DAs and application for the modification of development consents, for development: 

  • with a value of between $5 million – $30 million
  • that present a conflict of interest to the Council (e.g. council is the land owner)
  • that receive 10 or more objections
  • accompanied by a proposed voluntary planning agreement (VPA)
  • that depart from a development standard by more than 10%
  • with a risk for corruption including:

            -  residential flat buildings assessed under SEPP 65
            -  demolition of heritage items
            -  licensed places of public entertainment and sex industry premises
            -  designated development (high impact)

It will be possible for the local panel to delegate functions to a council officer.

What else will IHAPs do?

IHAPs will also advise the council on:

  • planning proposals referred by the council, and
  • other planning or development matter referred by the council.
  • The Minister may soon give directions to councils on the planning proposals that are required to be referred to the local planning panel for advice.

What will happen to DAs that are not determined by IHAPs?

Delegates of the Council, being an officer or employee of the council, will determine all other applications, that are not classed as regional development.

Regional development, which is more significant development, will continue to be determined by regional panels, including the six Sydney District Panels and the Southern Joint Regional Planning Panel.

What about development in the City of Sydney?

The new legislation has not changed the role of the Central Sydney Planning Committee, which operates to determine development in the CBD with a value over $50million, under the provisions of the City of Sydney Act 1988.  The City of Sydney is excluded from regional development provisions. However, it is not excluded from the new changes which introduce local planning panels.  It is anticipated that the Minister will make a future direction as to the types of development to be determined by delegation and by local panels in the City of Sydney. 

How will IHAPs operate?

IHAPs will consist of four members:

  • an independent chairperson, approved by the Minister with expertise in law and public administration
  • 2 other independent persons with relevant built environment expertise, endorsed by the Minister, and selected from a ‘pool’ by the Council, and
  • a Council selected community representative for the area.

IHAP members will not include councillors, property developers and real estate agents. The Planning Minister is currently seeking expressions of interest for potential planning panel members.

IHAPs will operate under a compulsory Code of Conduct and will not be directed or controlled by the council, except for procedural matters.

Are there any changes to regional panels?

The assessment and determination of regional development remains unchanged, except the increase in threshold by $10 million to a CIV of $30 million for certain classes of development. This change is yet to be made.

The six district Sydney Planning Panels which determine regional development in the Sydney metropolitan area, are currently chaired by the Greater Sydney Commission’s District Commissioners.  In the future, these panel chairs will be changed to ministerially endorsed experts. The Minister is currently seeking expressions of interest to fill the positions. The Department of Planning and Environment have advised that separating the role of the District Commissioners away from the Sydney Planning Panel responsibilities will allow them to focus on setting the strategic direction for their district. 

What will happen to current applications?

Where a council has constituted a IHAP, any DAs and modification applications now submitted to a council, or already submitted to a council, will be determined by a delegate or the IHAP. If a council does not currently have a IHAP, transition provisions allow an interim period up to 1 March 2018 for the new decision-making framework to be introduced. However, it is not yet clear if applications will continue to be determined by councils or by the delegates. A planning direction from the Minister is required to clarify this issue.

Any application already submitted to council with a CIV between $20 million and $30 million will be referred to a regional panel until such time that the changes to the thresholds are proclaimed.


Article by Urbis. Originally published as Experts will approve development in Sydney and Wollongong.



 


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