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Focus: Environment & Planning – June 2008

Amendment Bill proposes increase in ministerial power

In brief: The Environmental Planning and Assessment Amendment Bill proposes the most significant reforms to the planning system since the inception of the Environmental Planning and Assessment Act 1979 (NSW). Partner Paul Lalich (view CV) and Lawyer Joy Lam report.

How does it affect you?

  • The introductory speech for the Environmental Planning and Assessment Amendment Bill 2008 (NSW) refers to a new planning system that is 'transparent, rigorous, accountable and efficient'.1
  • However, the proposed reforms transfer significant powers to the Planning Minister while at the same time reducing rights of appeal. These changes could result in a reduction of transparency and accountability in the planning system.

Outline of reforms

Environmental planning

The Environmental Planning and Assessment Amendment Bill 2008 (NSW) (the Amendment Bill) introduces a new process for making local environmental plans (LEPs). This involves the preparation of a planning proposal that explains the justification for, and the intended effect of, the proposed instrument. The planning proposal will then be reviewed by the Planning Minister, who will make a 'gateway determination' on a number of issues, including whether the matter should proceed, what community consultation is required and whether consultation with public authorities is required. Community consultation can be satisfied by public exhibition of the planning proposal or a summary of those provisions, and does not require public exhibition of the draft instrument.

As a result, the new regime gives the Planning Minister the power to substantially control the process for making LEPs and determine the extent of community consultation, while at the same time lowering the threshold amount of information that must be provided to the community. The ability of the Minister to dispense with the requirement for detailed community consultation when making a gateway determination represents a significant departure from the detailed statutory requirements for community consultation that currently exist.

The Amendment Bill also provides the NSW Governor with a very broad power to 'make environmental planning instruments for the purpose of environmental planning by the State' (a SEPP). Significantly, the Amendment Bill removes the requirements under the current regime that a SEPP relate to matters that are, in the opinion of the Planning Minister, of significance for environmental planning for the state and that the Governor make a SEPP only in accordance with a recommendation from the Minister. The Amendment Bill does not establish any requirements for consultation with the community or public authorities.

The power of the Governor to make a SEPP under the Amendment Bill can therefore be exercised unchecked and is not subject to the statutory requirements that currently exist in relation to environmental planning significance and ministerial direction.

Development contributions

The Amendment Bill also proposes reforms that will significantly increase the power of the Planning Minister in relation to development contributions, while at the same time removing key appeal rights for the proponents of development.

The new development contributions regime proposed by the Amendment Bill will give the Minister a broad power to make, amend or repeal a contributions plan on behalf of a council. The exercise of this power will not be subject to any conditions and the Minister will not be subject to the Environmental Planning and Assessment Regulations 2000 (NSW) in exercising this power.

Under the current regime, the interests of development proponents are protected by section 94B(3) of the Environmental Planning and Assessment Act, which provides that a condition requiring a contribution may be disallowed or amended by the Land and Environment Court on appeal on the basis that it is unreasonable in the particular circumstances, even if it has been determined in accordance with a contributions plan or ministerial direction.

Although this right to appeal is preserved by the Amendment Bill, its scope of operation will be limited. The new regime provides that no right of appeal to the Land and Environment Court will exist in relation to:

  • the approval, amendment or repeal of a contributions plan by the Planning Minister, or the reasonableness of a condition imposed in accordance with such a plan;
  • the remaking of an existing contributions plan by the Minister, or the reasonableness of a condition imposed in accordance with such a plan; or
  • a determination or direction by the Minister, or a condition imposed by a consent authority or the Minister, in relation to state infrastructure contributions.

Significantly, the Amendment Bill expressly states that no appeal rights exist in relation to these issues, notwithstanding s123, which provides open standing for any person to seek an order to remedy or restrain a breach of the Environmental Planning and Assessment Act.

The actions of the Minister in exercising these powers therefore cannot be challenged, even if the Minister has failed to comply with the requirements of the Environmental Planning and Assessment Act, and will accordingly be shielded from review by the Land and Environment Court.

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Implications of proposed reforms

The proposed reforms for environmental planning represent a significant departure from the detailed statutory requirements that currently exist and have been strictly interpreted in a long line of judicial authority. The changes proposed by the Amendment Bill have the potential to erode the notion of public participation and create a fundamental dislocation with one of the main objectives of the Environmental Planning and Assessment Act, which is 'to provide increased opportunity for public involvement and participation in environmental planning and assessment'.2

The transparency and accountability of the planning system is also limited by the proposed changes to the development contributions regime, which significantly extends the power of the Planning Minister in relation to contributions plans and, at the same time, eliminates the right to appeal in relation to the exercise of ministerial power, even if the requirements of the Environmental Planning and Assessment Act have not been satisfied.

Public participation and appeal rights are traditional safeguards against the undue exercise of administrative power and are crucial to transparency and fairness in the planning system. The proposed elimination of these protective measures and the concentration of ministerial power under the Amendment Bill may have significant implications for accountability and the integrity of the planning system.

Footnotes
  1. Planning Minister Frank Sartor, introduction of Amendment Bill, 15 May 2008.
  2. s5(c) of the Environmental Planning and Assessment Act 1979 (NSW).

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