Australia: Bill to constitute the Greater Sydney Commission (GSC) now before NSW Parliament

A Bill to create the Greater Sydney Commission (GSC) was recently introduced into Parliament by the NSW Government. The GSC is a new government agency that will be responsible for all strategic planning within the Greater Sydney Region. Until now, these roles mostly rested with the NSW Department of Planning and Environment or the Planning Minister.

The novel structure of the GSC promises to coordinate and streamline the approach to planning matters, bearing in mind the multi-faceted discipline that is 'planning'. One of its key responsibilities will be to implement 'A Plan for Growing Sydney', which many will recall is the regional plan that was previously published by the government in December 2014. Further, the GSC will incorporate a regional planning panel to hear and determine development applications for regionally significant development.

This article provides an overview of what you can expect to see with the GSC, which has been long awaited by many in the planning community.

Overview of the GSC

With responsibility for the planning and determination of regionally significant development in the Greater Sydney Region, the area over which the GSC will have jurisdiction includes all of the Sydney LGAs as far north as Hornsby and the Hawkesbury, as far west as the Blue Mountains and as far south as Wollondilly and Sutherland.

The existing Sydney West and Sydney East joint regional planning panels will be abolished and a new panel will be appointed to cover all of the Greater Sydney Region (except Sydney LGA, which will be covered by the Central Sydney Planning Committee).

The GSC will consist of the following members:

• four Greater Sydney Commissioners, with one acting as Chair and the other three appointed as the Environment, Social and Economic Commissioners (with relevant expertise in each relevant field)
• six District Commissioners representing the six districts within the Greater Sydney Region
• Secretary of the NSW Department of Planning and Environment
• Secretary of the NSW Department of Transport
• Secretary of the NSW Treasury.

The GSC will not be subject to the control and direction of the Planning Minister (see section 5 of the Bill) but most of its members are to be appointed by the Minister (aside from the Secretaries) and the Minister can direct the GSC to provide advice, information or reports on anything the Minister asks.

The GSC will be run by a Chief Executive Officer and public servants as directed by the GSC.

The GSC will also have committees. In particular, the Strategic Planning Committee will prepare regional and district plans. For this function, the Secretaries of the Departments (who will be members of the panel) will not be involved until a decision is made to adopt a plan that has been prepared.

The GSC will ultimately make decisions by majority vote, with a quorum being at least half of the members of the GSC and at least one Greater Sydney Commissioner, two District Commissioners and one ex-officio member. The Chair has the casting vote. It will be interesting to see how the GSC's decision-making unfolds in practice considering the balance between the types of Commissioners and the Secretaries.

What's the role of the GSC?

The objectives of the GSC principally relate to planning in the Greater Sydney Region, including the orderly development and alignment of Government infrastructure decision-making. Interestingly, it also has specific objectives to promote the supply of housing (including affordable housing) and encourage development that is resilient and takes into account natural hazards.

The GSC's specific tasks include:

• making a regional plan for the Greater Sydney Region – this is deemed to be the 'A Plan for Growing Sydney' which was previously published by the government in December 2014
• monitoring and reporting on the implementation of A Plan for Growing Sydney
• making six district plans for the districts within the Greater Sydney Region
• determining regionally significant development, via the planning panel.

How will the Sydney planning panel be different?

The make-up of the new Sydney-wide planning panel will be different to the Sydney West and Sydney East planning panels that it will replace, because the Chair of the new panel will be the relevant District Commissioner from the GSC. It is likely that this is intended to ensure consistency of decision-making and better alignment of decisions with GSC objectives and plans.

How does the GSC intersect with local Council decisions on planning?

Local Councils will still be primarily responsible for preparing planning proposals for their own LGAs.

However:

• Councils for each LGA will be required to review all local environmental plans and prepare planning proposals as necessary to give effect to a district plan 'as soon as practicable' after it is made by the GSC, and will be further required to report to the GSC (see section 75AI of the Bill)
• in preparing any new planning proposals, Councils must have regard to district plans of the GSC and give effect to them.

For regionally significant development applications, Councils will still prepare the assessment reports but the determination will be made by the Sydney-wide planning panel.

Of particular interest is the fact that if a Council does not review or prepare planning proposals to amend its local environmental plan to give effect to a district plan made by the GSC in a timely fashion, the GSC will have no enforcement powers. However, the Minister could in this circumstance remove the planning authority functions from the Council and give them to the Secretary of the Department of Planning and Environment or the GSC (or its panel), or the GSC could make the local environmental plan itself under the new section 53A of the Environment, Planning & Assessment Act (as inserted by the Bill). Councils will be required to allow the GSC access to such information as it demands and such staff and facilities as it requires in order to perform its functions (see section 20 of the Bill). We suspect that at a minimum, this would include necessary evidence-gathering and data to draft plans and monitor their implementation.

How does this fit in with the Government's previous attempts at planning reform?

In 2013, the Government introduced the Planning Bill 2013 (2013 Bill) which was never passed and ultimately lapsed early this year.

The 2013 Bill included what was then a new concept of regional and subregional plans, and this new Bill includes a similar concept in the regional and district plans with the following differences:

• the plans do not need to have targets for housing, employment or environment (for example, there will be no targets for the number of new dwellings required) - this is a key omission that will make reporting difficult
• the plans do not need to specifically deal with existing or proposed transport or other infrastructure, but must have regard to State infrastructure plans
• the plans do not need to indicate regionally significant areas
• the plans will now need to have regard to State environmental planning policies, and any other relevant government policies
• a draft district plan must go on pubic exhibition within 12 months of the district being declared
• the plans are to be made by the GSC and not by the Planning Minister.

Implications and conclusion

For projects being designed or in the planning stage, developers need to be conscious that regional and district plans will be made soon, assuming the Bill passes. As soon as the plans are made, Councils will be obliged to amend their local environmental plans to give effect to the plans, which means the constraints on the development of a property may change. Until the local environmental plans are changed, the regional and district plans are likely to be relevant considerations that will be taken into account in the determination of a development application.

Developers and landowners should keep an eye out for exhibition of the draft plans and make submissions within the 45 day exhibition period if it will affect their project.

Further, developers should be aware that the planning panel that may determine their application will change in the near future.

It is promising to see there will be a new agency that attempts to coordinate and provide a mechanism whereby the different skill sets, experience and platforms relating to planning can be represented in one agency to make strategic planning decisions in the Greater Sydney Region. What remains to be seen is how the votes of each of those interests will manifest in the ultimate decision-making of the GSC.

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.