Australia: The good, the bad and the indifferent: Proposed changes to the NSW Independent Planning Commission

A review by the NSW Productivity Commission has called for significant reforms to the NSW Independent Planning Commission (IPC) that will see it brought in as the final arbiter for only the State's "most controversial projects".¹

This review was commissioned following a number of crucial missteps by the IPC in the eyes of key stakeholders, these included:

• purporting to determine the application for the Rix Creek South Mine extension while the application was still on exhibition. The decision then had to be remade with undue haste after the submission period closed
• the approval for the United Wambo project was subject to a condition that had extraterritorial effect despite the express desire from the NSW Department of Planning, Industry and Environment (Department) that such a condition should not be imposed
• the Bylong Coal project was refused despite a recommendation for approval from the Department
• late changes in the representation of the IPC because of a conflict of interest in the case of the United Wambo and Vickery Extension project
• the late cancellation of public hearings in both the Tahmoor South and United Wambo projects
• the refusal of the State City Casino project following the Premier's call for a snap review of the planning controls for Pyrmont.

In its report, the Productivity Commission made 12 recommendations to improve the IPC's independence, governance and performance, all of which were accepted by the State government on 1 February 2020.

The good

Independence and governance

The first recommendation is that the IPC should stay. The report also recommends establishing the IPC as a separate agency under the Government Sector Employment Act 2013 (NSW) and making the Chair of the IPC directly accountable to the Minister.

The establishment the IPC as a separate agency will enable it to better manage its own budget and head count – a valuable change that will undoubtedly improve its ability to do its job.

Also making the Chair the head of the IPC directly accountable to the Planning Minister will remove what some see as the perceived influence of the Department, given that previously the Chair reported to the Secretary of the Department and that it was the Planning Secretary who was responsible for allocating the people and resources the IPC needed.

Focusing on the skills of the Commissioners

A stronger focus on generalist decision-making skills rather than narrow technical expertise is a notable change to the structure and functioning of the IPC. This change will require that Commissioners have the requisite expertise to:

• sufficiently understand the planning system and legislation
• sufficiently recognise the key issues and assessment approach adopted by the Department
• not focus too heavily on their particular area of expertise
• be better placed with the technical expertise relevant to the key issues of a particular project.

The number of Commissioners will also be reduced from 29, allowing the IPC to more readily align with similar planning bodies in other Australian jurisdictions. However, it is unclear how many Commissioners will be envisioned under the reform.

It is generally agreed that these recommendations have the potential to improve decision-making timeframes and reduce the risk of inconsistency in decision-making.

The bad

Changes to the referral criteria

The consent authority for State significant development depends in part on the number of objections received. Where the existing thresholds are met the IPC becomes the consent authority. Where those thresholds are not met the Planning Minister is the consent authority. However, in practice most of these application are determined by Departmental officers under delegation.

The Productivity Commission was concerned that too many applications had to go to the IPC and that some of those applications did not warrant the additional oversight provided by the IPC.

The Productivity Commission recommended amending clause 8A(1) of the State Environmental Planning Policy (State and Regional Development) 2011 on the basis that it will more clearly focus the role of the IPC on the determination of the most contentious applications.

In particular, the report recommends doubling the referral threshold from 25 to 50 "unique" community objections. Also, only objections made from people residing within a specified distance from the project will count towards this 50 objection threshold.

While submissions made by objectors outside the relevant radius of the proposed development site must still be considered by the consent authority, the concern is that these changes significantly narrow the referral threshold, meaning that less applications will in fact be referred to the IPC for determination.

For example, a total of 315 individual submissions were received in relation to the Bylong Coal Project, however 235 of these were made by people who reside over 60 kilometres from the project site. This means that under the proposed change, 75 per cent of these objections may not have contributed towards the total objections required under the referral threshold calculation.² Admittedly, the application would still have been referred to the IPC, given that the remaining 80 local submissions exceeds the proposed 50 objection limit. However, this example shows just how restrictive this limitation is, even in the context of well-known and large scale controversial developments.

In our view, this constitutes an erosion of the role of public participation and transparency, both of which have been regarded as essential hallmarks of an effective planning system. It also, in our view, may lead to mounting public discontent as people may view this as a calculated attempt to reduce transparency and claw back power in respect of development decisions.

The other concern from a system perspective is that we now have two types of objections. All objections must be considered as part of the determination of any development application but only some objections will have a bearing on whether the IPC is the consent authority for the development. It seems to us that just because a person lives more than 60 kilometres away and objects to a development, the development is not somehow less controversial.

Similarly, it is clear that the status of an objection will depend on where the objector resides. If a person is fortunate enough to own a property near a development but doesn't reside there, why should this objection count for any less? Also, it is unclear how group objections are to be treated. For example, industry and community groups regularly write letters of objection and letters in support of projects – where do they reside and how are they to be treated under the referral criteria?

More modification applications to be determined by the Department

The Productivity Commission's report recommended in favour of delegating the determination of modification applications to the Department rather than the IPC, with the exception of those applications subject to reportable political donations.

The impact of this is best demonstrated by the fact that if this recommendation is adopted, applications such as the Star Casino tower proposal (which was made by way of a modification application of an existing Part 3A project) would now be determined by the Department under delegation and not referred to the IPC.

This was a very provocative project which captured headlines for months and was subject to 83 objections from the public.³ If the change had been implemented, despite the considerable number objections received, the application would not have gone to the IPC for a determination. Given this, we are unsure how this recommendation would assist in preserving the IPC's role as arbiter of the most controversial applications. In fact, this change appears to do the opposite.

The indifferent

Improving efficiency of IPC deliberations

The time it takes for these kinds of applications to be determined has always been an issue for stakeholders. The report recommends incorporating outcome-focused objectives and performance measures including quality and timeliness targets and while these changes are welcomed, it is unclear whether a focus on efficiency of process will result in better decisions.

Similarly, another change is the simplification of the Statement of Reasons. We are not sure that there is much in terms of a time saving to be made reducing and simplifying any statement of reasons. Any changes here will need to be carefully considered because this could render IPC decisions more readily open to legal challenge where, for example, a party is able to argue that the Statement of Reasons does not disclose whether the IPC has taken into account all relevant considerations in reaching their decision.

The implementation of a single-stage public hearing process and the removal of referrals to the IPC for advice are also notable changes to the structure and functioning of the IPC.

These measures represent attempts to reduce the time frames for IPC decisions, seeking to make the case that such changes are necessary on the basis that the IPCs focus should be on determination and that it is the Department's role to focus on assessing the application. Such a distinction is somewhat misconceived. If the thresholds are met, it is the IPC that is the consent authority for the development. Like it or not, it is the Planning Secretary that exercises the functions of the IPC not the other way around and it is the consent authority that must be satisfied of all the relevant matters as part of determining any application. Assessment and determination are said to be 'indivisible' and while duplication is to be avoided, the notion that it is the Department's role to do the assessment and the IPCs role to determine the application is misplaced.⁴

Is this major overhaul a step in the right direction?

Minister Stokes has said that the proposed changes to the IPC will result in a "significant transformation" with "new performance benchmarks, streamlined processes, and greater accountability" in the way planning decisions are made.⁵

However, it is clear to us that not all of these changes represent a step in the right direction.

While improvements in efficiency and governance are clearly uncontroversial, the changes to the referral criteria and the removing of the IPC's jurisdiction to determine modification applications are not. These changes result in a significant whittling down of the IPC's role as an independent consent authority and an erosion of the critical role that objectors play in the decision-making process.

Most alarming is the fact that the impacts of these changes have not been sufficiently signposted by either the Planning Commission or Minister Stokes and therefore the consequences of these reforms may not be well understood beyond those who watch these things very closely.

The IPC is an essential feature in the planning framework but it is not clear that this role has been adequately preserved under the proposed reforms.

Footnotes

¹ Minister for Planning and Public Spaces (NSW), 'Major Reform to Independent Planning Commission Following Extensive Review' (Media Release, 1 February 2020).

² Independent Planning Commission, Bylong Coal Project: Statement of Reasons for Decision (18 September 2019)<

³ Independent Planning Commission, Star Casino Redevelopment: Statement of Reasons for Decision (18 September 2019)

⁴ Amalgamated Holdings Ltd v North Sydney Council [2012] NSWLEC 138.

⁵ Minister for Planning and Public Spaces (NSW) (n 1)

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