Earlier this year significant amendments were made to the
Environmental
Planning and Assessment Act 1979. Perhaps the most controversial of these
amendments were those relating to the Ministerial appointment of planning
assessment panels to replace the role of local councils in determining
development applications. Part 1 of this paper reviews the arguments for
involving independent hearing and assessment panels in determining development
applications. Part 2 of this paper looks at the assessment and determination
of major projects.
Local government councilors have three main roles: establishing development
standards through their role in preparing local environment plans; deciding
whether to grant development consent to development applications; and acting as
constituent representatives. The combination of these roles is unique to local
government, and can create conflicting roles for councilors. The absence of a
‘separation of powers’, thus allowing councillors to both establish
development standards and then assess applications against those standards, has
been frequently criticised. This stems from the belief that a
councilor’s policy role should be separated from their operational role.
It has been suggested that either: local government delegate development
assessment determination power while retaining the ability to call-in any
application for determination by council; or an expert panel determines the
application. It has been argued that independent hearing and assessment panels
have the following benefits:
- A mechanism for the assessment of development applications based on the
rules of procedural fairness;
- An independent and professional judgement on development applications;
- A counterbalance to perceptions of bias decision making by councilors;
- A focus on a non-adversarial process for resolving disputes between
objectors and applicants.
Arguments against the introduction of independent panels include: they could
weaken democratic accountability; whoever chose the members of the panel would
exercise influence; it would increase bureaucracy and costs; and there may not
be a sufficient number of panel experts to serve all councils.
Local government does not support delegating determination authority to an
independent panel, and believes that any panel role should be restricted to an
advisory capacity. In contrast, developers support the introduction of
independent panels to determine development applications. With the passage of
the
Environmental Planning and Assessment Amendment Act 2006, the
Minister for Planning has the power to replace a local council’s
development determination function with either an independent panel or a
planning administrator.
The
Environmental Planning and Assessment Amendment (Infrastructure and
Other Planning Reform) Act 2005 introduced provisions relating to major
infrastructure and other projects into the
Environmental Planning and
Assessment Act. The legislative background to the determination of major
projects is explained. Proposed amendments to the major projects legislation,
and the introduction of a draft State Environmental Planning Policy
(Infrastructure) are reviewed.
