The Planning Assessment Commission (the Commission) has improved its decision-making processes for major development applications in recent years. The Commission has improved how it consults the public and manages conflicts of interest, and now also publishes records of its meetings with applicants and stakeholders.
1. Executive Summary
The Planning Assessment Commission (the Commission) is an independent body established in 2008 under the Environmental Planning and Assessment Act 1979 (the EP&A Act). It makes decisions on major development applications in New South Wales. Along with the Department of Planning and Environment (the Department) and the Land and Environment Court, it is one of three bodies that have a role in making decisions on these applications.
The Department refers development applications to the Commission where 25 or more objections have been received from the community, a local council objects to the proposal, or the applicant has donated to a political party.
These applications are often complex and controversial, and can attract a high level of public interest. This may mean that, regardless of the process, not all stakeholders are satisfied with the outcome.
The Commission is required to take into account section 79C of the EP&A Act when making decisions. Section 79C includes consideration of the likely environmental, social and economic impacts of the development.
This audit assessed the extent to which the Commission’s decisions on major development applications are made in a consistent and transparent manner. To assist us in making this assessment, we asked whether the Commission:
- has sound processes in place to help it make decisions on major development applications that are informed and made in a consistent manner
- ensures its decisions are free from bias and transparent to stakeholders and the public.
Over the last two years, the Commission has improved its decision-making process. It has improved how it consults the public and manages conflicts of interest, and now also publishes records of its meetings with applicants and stakeholders.
However, there are still some vital issues to be addressed to ensure it makes decisions in a consistent and transparent manner. Most importantly, the Commission was not able to show in every decision we reviewed how it met its statutory obligation to consider the matters in section 79C of the EP&A Act.
Despite improved probity measures put in place by the Commission, there is a perception among some stakeholders that it is not independent of the Department. The reasons for some of these concerns are outside of the Commission’s control. For example, the Commission becomes involved after the Department has prepared an assessment report which recommends whether a development should proceed. This creates the perception that the Commission is acting on the recommendation of the Department. The Department’s assessment report should state whether an application meets relevant legislative and policy requirements, but not recommend whether a development should be approved or not.
More can also be done to improve transparency in decision-making and the public’s perception of the independence of Commissioners. The Commission should continue to improve how it communicates the reasons for its decisions and also publish on its website a summary of Commissioners’ conflict of interest declarations for each development application.
Decision-making processes have improved but some key aspects need to be addressed
Although not articulated in one document, there is a framework in place to assist Commissioners make decisions on major development applications. This includes setting out the information to be considered, who to consult, and that a report is to be prepared. The Commission has recently improved how it conducts public meetings and the level of support provided to Commissioners to ensure they understand the decision-making process. The Commissioners we interviewed all showed a good understanding of their role.
As a consent authority, the Commission is required to consider the matters in section 79C of the EP&A Act when making a decision. However, it was not able to show how it met this requirement in every decision we reviewed. We found some evidence of these considerations in six of the nine cases we reviewed, for example in meeting notes or in its report on a decision. Of these six cases, the degree to which the Commission considered all matters under section 79C varied considerably. The larger, more complex applications were more likely to address these considerations. To demonstrate compliance with the EP&A Act, the Commission must be able to show how it considers all matters in section 79C for each decision it makes.
We found that the Commission has access to relevant information to make a decision and consults stakeholders for their views of the development. The level of consultation depends on the size and complexity of an application. If Commissioners decide they need more information to make a decision, they consult local councils, the community, other government agencies and experts as needed.
The Commission’s public meetings are a valuable part of the decision-making process, where new perspectives or issues are often raised. However, some aspects could be improved. For example, many stakeholders thought the five minutes allowed for individual speakers was insufficient. The Commission could be more flexible with this timeframe. Identifying new ways to notify the public of its meetings, other than advertisements on its website and in newspapers, would also ensure it reaches as many interested parties as possible.
Improved transparency and probity but the Commission is not seen by some as impartial
The Commission has sound processes in place to ensure that its decisions are impartial and transparent to the community. It has improved its probity measures over the last two years, following a review by the NSW Ombudsman in 2014. We found that the Commission:
- has probity policies and procedures which are available on its website
- has improved its record keeping of some processes, such as meetings with applicants and stakeholders
- publishes its decision and supporting documentation, such as meeting notes, on its website.
Conflicts of interest are a significant risk for the Commission because they could lead to corruption, abuse of public office, and affect the public’s view of its independence. The Commission manages this risk well. It has a policy in place to address potential, perceived or actual conflicts. Commissioners update their conflicts of interest records annually, and declare any conflicts when the Commission assigns them to a development application. Unlike the Commission’s probity polices, Commissioners’ conflict of interest declarations are not available on its website. Providing a summary of this information on its website when Commissioners are allocated to a development application would further improve transparency around conflicts of interest.
The Commission has been improving how it communicates its decisions to the public. It now produces fact sheets for its decisions on matters that attract a high level of public interest. Its reports on decisions for complex applications also discuss issues raised by the community. However, the level of detail varied in the decisions we reviewed, and it was not always clear how conditions placed on a development would resolve identified issues. Similarly, the reports did not clearly address the matters under section 79C of the EP&A Act. Reporting this would further improve the transparency of its decisions, and clearly demonstrate compliance with the EP&A Act.
While we did not find any issues that would make us question the integrity or independence of Commissioners, there remains a perception among some stakeholders that the Commission is not impartial. Some of these concerns are within the Commission’s control to fix, such as allowing individual speakers at public meetings extra time to discuss their issues, therefore avoiding perceptions of bias.
Other perceptions, such as the Commission being part of the Department and not an independent decision making authority, are outside the Commission’s immediate control. For example, the Commission receives applications at the end of the assessment process, after the Department has prepared an assessment report recommending whether the application should be approved. This means there are effectively two reports on an application; the Department’s assessment report and the Commission’s report on its decision. However, there is only one decision-maker: the Commission. This may cause community confusion about the roles of the Department and the Commission in the decision-making process. Clearer separation of their roles in assessing applications and preparing reports is needed.
To minimise the perception that the Commission is simply ‘rubber stamping’ the Department’s recommendations, assessment reports should not recommend whether or not a project be approved. Instead, they should provide the Department’s views on whether a project meets relevant legislative and policy requirements. The Commission should also be involved earlier in the process, so it can establish key facts and identify relevant issues sooner. It should request that the Department’s assessment report covers matters Commissioners consider particularly important when assessing projects under section 79C. Earlier referral of applications should also help the Commission to plan its work in assessing applications, and may reduce the time taken to reach a decision.
Unless these issues are addressed, stakeholders will continue to believe the Commission does not act in a transparent and impartial manner, which could erode public confidence in the Commission.
The Planning Assessment Commission
The Planning Assessment Commission (the Commission) is a planning authority established in 2008 under the Environmental Planning and Assessment Act 1979 (the EP&A Act). One of its functions is to make decisions on major development applications.
The Commission is independent of the Department of Planning and Environment (the Department) and the Minister for Planning. This means its decisions are not subject to the direction or control of the Department or the Minister.
The Department refers applications for major development to the Commission, including state significant development and infrastructure applications. These projects are generally initiated by the private sector. Applications are referred to the Commission when one or more of the following criteria are met:
- more than 25 objections are received about the proposal
- the local council objects to the proposal
- the applicant has donated $1,000 or more to a political party or member of parliament.
These applications are often controversial and may attract a high level of public interest. Of the 29 development applications the Commission received in 2015–16, almost 40 per cent were in the mining and energy sectors, and another 40 per cent related to urban development.
Section 79C of the EP&A Act outlines the matters the Commission must consider when making decisions about major development applications. These include:
- any relevant environmental and planning instruments
- likely environmental, social and economic impacts of the development
- suitability of the site for the development
- submissions received about the application
- the public interest.
In addition to making decisions about major development applications, the Commission also reviews major developments as part of the planning process, and provides independent expert advice to the government on planning and development matters. Since the Commission’s inception, it has provided advice on 76 matters, conducted 39 reviews, and made 444 decisions on development applications.
Process for approving major development applications
The Commission is one of three bodies that have a role in the planning and approval process for major development applications in New South Wales, as seen in Exhibit 1. The other two bodies are the Department of Planning and Environment, and the Land and Environment Court.
The Department determines the outcomes of major development applications. When an application meets one of the criteria listed above, it refers these to the Commission to make the decision. In certain circumstances, the Land and Environment Court hears appeals against decisions made by either the Department or the Commission.
A Memorandum of Understanding between the Commission and the Department sets out timeframes the Commission must meet when making a decision, specifically:
- two weeks where no stakeholder meetings are required
- three weeks where stakeholder meetings are required
- six weeks when a public meeting is required.
About the audit
This audit assessed the extent to which the Planning Assessment Commission’s decisions on major development applications are made in a consistent and transparent manner.
As part of the audit, we:
- reviewed relevant Commission policies and procedures
- interviewed Commission staff
- interviewed 13 of the 22 Commissioners
- reviewed nine recent decisions on major development applications
- attended two public hearings
- interviewed a range of stakeholders, including NSW Government agencies, local councils, peak industry associations, environmental groups, and community action groups
- undertook a jurisdictional comparison of the major development application approval processes in Australian states and territories (Appendix 2 details the results of this research).
See Appendix 3 for further information on the audit scope and criteria.
For the purpose of this report, we have divided the decision‑making process into three phases:
- assigning Commissioners to applications
- gathering relevant information
- making the decision.
4. Key findings
4.1 Assigning Commissioners to applications
4.1.1 Supporting new Commissioners
The Commission requires all Commissioners to declare potential, perceived and actual conflicts of interest. When Commissioners are appointed, they must also declare all business interests, sources of income, memberships and personal or business relationships that have, or could be perceived as having, an effect on their duties and responsibilities.
Commissioners update their conflict of interest status annually, and must declare any changes in circumstances as they arise. This is good practice which minimises the risk of a conflict of interest occurring when Commissioners are working on an application.
Even though the policies are on the Commission’s website for the public to view, the Commissioner’s declarations are not. The Commission has advised that the public can ask to view these at any time at the Commission’s Sydney office. To improve transparency, the Commission should publish a summary of Commissioners’ conflict of interest declarations for each development application referred to it for determination, together with information on how any conflicts were handled.
4.1.2 Assigning Commissioners to decisions
Commissioners have a broad range of skills and expertise
The Minister for Planning appoints Commissioners following a recruitment process managed by the Department. The Commission advised that, in the most recent round of appointments, the Department consulted it for advice on the skills required for incoming Commissioners. This ensures that the pool of Commissioners has a suitable mix of skills.
The Commission Chairperson assigns Commissioners to an application after considering the nature of the application, expertise required, Commissioners’ availability and skills, and whether they have perceived, potential or actual conflicts of interest.
When assigning a Commissioner, the Commission advised that it aims to ensure that the chair of a decision-making panel has expertise in the subject area. We reviewed nine recent decisions and found that the chair’s background and experience broadly matched the experience needed. We interviewed stakeholders for two decisions including the applicant, the local council, and community groups. All were of the view that the Commissioners had the skills and expertise to make decisions.
Conflicts of interest exclude Commissioners from decisions
As discussed previously, one of the key challenges for the Commission is ensuring conflicts of interest are properly managed. This is even more important in an environment where Commissioners tasked with decision-making roles may have previously worked in the industry being reviewed.
All Commissioners we interviewed advised that the Commission contacted them to ask if they were involved in, knew of, or had contact with, any of the key parties in an application, before they were allocated to a panel. Similarly, when potential conflicts arise during the decision‑making process, Commissioners are required to advise the Commission Chair. The Commission Chair decides whether they remain on a panel or are replaced.
In our review of nine cases, we did not identify any actual conflicts of interest. For two cases, there was a perceived conflict of interest. We found that the Commission managed these conflicts appropriately. In both cases, the Commissioner remained on the panel.
In one case, a perceived conflict arose during a public meeting. A speaker had approached the Commissioner before the public meeting. He introduced himself as a former husband of someone who had worked with the Commissioner more than 20 years earlier. The Commissioner had not socialised with this person since that time. The Commissioner wrote to the Commission Chair immediately after the meeting to avoid any perception of conflict of interest. A check against the matrix in Exhibit 2 shows that it was appropriate for the Commissioner to remain on the panel.
In the other case, a Commissioner assigned to a coal mining application was the chair of a Community Consultative Committee for another coal mining project. A perceived conflict could arise if stakeholders think the Commissioner is for or against coal mining. The conflict of interest matrix does not refer to this specific situation. However, the coal mines were located in different areas of New South Wales and owned by different companies. Therefore, the Commission Chair decided that the Commissioner could remain on the panel.
Documenting how Commissioners are assigned to applications could be improved
The Commission could improve its record keeping of the allocation process. This would reduce the reputational risk to the Commission, especially around conflicts of interest. For example, we found that the conflict of interest discussion at the start of each project is not consistently documented for each application. During the audit, we spoke with the Commission about addressing this issue. It advised that it will start capturing this information in the letter confirming a Commissioner’s allocation to an application.
4.2 Gathering relevant information
4.2.1 Information from the department
The Department’s material is the initial source of information for review
The Department provides the initial information on an application. This includes:
- the applicant’s submission
- the environmental impact statement
- public submissions received during the public exhibition stage
- other relevant documentation, such as expert assessments
- the Department’s assessment report.
Each Commissioner is required to review the documentation provided and identify any issues relevant to their assessment of the application under section 79C of the EP&A Act. Commissioners regularly request additional information from the Department. Commissioners advised that Departmental staff always provide information and respond to further questions when needed. This is supported by our review of nine cases where we found evidence of the Commission liaising with the Department during the decision‑making process.
4.2.2 Information from stakeholders and experts
Commissioners draw on a range of information sources to make a decision
Commissioners have the discretion to seek additional information if they believe the initial information provided by the Department is not sufficient or comprehensive. Where further information is required, the Commission seeks this from a range of sources including:
- the applicant
- government agencies
- local councils
- community groups
- subject matter experts or specialist consultants.
We found many examples of Commissioners’ consulting applicants, local councils, affected people (e.g. community groups) and relevant government agencies. Additional information was requested in six of the nine cases we reviewed. These were larger, more controversial applications, which also included public consultation.
The Commission also draws on external experts to provide further information or clarify issues. Often these experts are from other government agencies, for example the Department, the Environment Protection Authority or the Office of Environment and Heritage.
The Commission engages consultants when needed. Commission staff advised that there were no impediments to engaging consultants other than time pressures. The Commission has engaged consultants more frequently in recent years. This has included subject matter experts and legal advisors.
Commissioners may also conduct site visits on larger projects. They view the site and surrounding area, with or without the applicant, to gain a better understanding of the issues relevant to the proposed development.
Commissioners can be required to make decisions where policy is unclear
Overall, Commissioners stated that they were able to access information when needed. The only information gap they identified was a lack of policy in some areas, such as voids left by open cut mines, or the cumulative impacts of developments. When this occurs, there is a risk that Commissioners may reach different conclusions on an issue. The Commission aims to address this risk by undertaking more research or consulting experts to gain an understanding of an issue. In one of the cases we reviewed, Commissioners researched voids left by open cut mines. The Commission’s report on this case noted that there was not yet a government position on mine voids. The Commission also included a condition requiring the applicant to review its rehabilitation plans to reflect any future policy on this issue.
Ultimately, Commissioners are required to make judgements within existing laws, policies and guidelines. The Commission advises that, in addition to noting any policy gaps in its reports, it also raises these issues in correspondence to the Department and Minister for Planning.
Timeframes for reviewing information and making a decision are tight
Commissioners reported that the timeframes for making a decision were tight, particularly for more complex applications involving a public meeting and significant consultation.
In 2015–16, the Commission met the target for one third of its decisions that required a public meeting. In our case review, none of the more complex cases met the six-week target timeframe.
There were valid reasons for delays in some cases that were outside the Commission’s control, for example:
- there was a change in government policy
- the public meeting was pushed back due to the Christmas period
- there were two applicants for a project, and approval of one application depended on settling issues for the other
- more information from the applicant or government agencies was required.
The Commission advised that it takes up to four weeks to hold a public meeting, as it gives the public two to three weeks’ notice of a meeting. This is consistent with its public meeting guidelines and comments made in Land and Environment Court decisions about the Commission notifying the public of meetings.
This means that Commissioners may have only up to two weeks to consider a matter and prepare a report. The Commission advised that it must give due consideration to a project and public comments which means that meeting the timeframe is not always possible. To overcome this, the Commission is allowed to ‘stop-the-clock’ during its assessment process where additional information or further technical advice is required.
The table below shows a breakdown of time spent on decisions in the cases we reviewed. It includes ‘stop the clock’ days which refers to the time spent waiting for information or advice from the applicant, Department, or other government agencies.
|Total elapsed days||190||162||113||108||67||45||19||3||2|
Our analysis shows that, even with the ‘stop the clock’ provision, the Commission did not meet the target timeframe in seven out of the nine matters we reviewed. Earlier notification of matters to the Commission may help it to better plan its work and give it more time to organise public meetings. We discuss this further in section 2.3.
4.2.3 Public consultation
Public meetings are used to consult the community
The Commission’s main means of consulting the public is through public meetings. These allow the community to raise concerns with Commissioners about the development before the Commission makes a decision. This includes any concerns about the Department’s assessment report and recommended consent conditions.
Public meetings are generally held if 25 or more public submissions are received. They take place in the local community where the project is proposed. Commissioners consider public meetings to be a valuable part of the decision-making process. They provide an opportunity for additional issues to be identified or seen from different perspectives, and it is common for new information and issues to arise.
We found that if circumstances change during the decision-making process, the Commission will consult the public again to seek further input. The case study below demonstrates the extent of consultation undertaken by the Commission in one case we reviewed.
We reviewed a case that involved an extension of a mining operation. We found that the Commission consulted extensively with stakeholders and the community throughout the decision‑making process. This included meetings or discussions with:
It also held a public meeting in a community venue near the development site at which over 100 people spoke about their views on the development. The Commission also sought additional written submissions from members of the community who had spoken at the public meeting when a policy changed during the process.
Standard documentation and processes are in place for public meetings
The Commission advises the public that a meeting will be held by putting a notice on its website. It also advises the local community by placing a notice in the local newspaper. We found that the Commission has good processes in place to document and conduct public meetings:
- it notifies people who make submissions during the public exhibition stage
- there is a standard format for agendas
- there is a standard opening delivered by the panel chair covering the Commission’s role, the purpose of the meeting, and the ground rules for attendees
- speakers and Commissioners have defined roles and timeframes
- a summary of issues raised at public meetings is publicly available.
At public meetings, organisations are allowed 15 minutes to speak and individuals are allowed five minutes. These timeframes were put in place to address concerns raised by some stakeholders that some people had more time to speak than others. It aims to address concerns about fairness and equity by allocating standard times for all speakers.
Time allowed for individual speakers viewed as too short
Stakeholders we spoke to considered 15 minutes to be adequate for organisations. However, many did not think that the five minutes allocated for individual speakers was long enough.
We observed two public meetings and found that many individual presenters struggled to meet the allocated timeframe. Speakers with technical presentations that included complex information were sometimes unable to finish their presentation. Others spent some of their allocated time responding to earlier speakers or previous decisions, and ran over time.
Commissioners advised that all speakers have the opportunity to provide additional information in writing to supplement their presentation, for up to a week after the meeting.
We believe more can be done in this area to improve the information obtained from public meetings and also ensure that the public feels it is being heard. This includes giving Commissioners the flexibility to extend the timeframe for individuals, where they think it is appropriate.
4.2.4 Stakeholder views of consultation
Stakeholders value public meetings but notification processes could be improved
Stakeholders we interviewed were supportive of public meetings, but thought some aspects could be improved. Some criticisms of the process were:
- not being notified of meetings
- meetings being held at times that were inaccessible for some members of the public
- meetings being held outside the relevant local government area.
The Commission advises that it has investigated these criticisms when they have been brought to its attention and has put in place measures to address community concerns. For example, it ensures meetings are held close to the affected community and it accepts written submissions from the public who cannot attend the meetings.
The one area where the Commission could improve is its notification processes to ensure it reaches as many interested parties as possible. The Commission advised that newspaper advertisements, particularly in metropolitan areas, are not always the most effective way to advise the community of public meetings. Likewise, notifying all parties who made previous submissions about a development can be difficult. The Commission should identify additional methods, beyond advertising in newspapers and on its website, to notify the community of public meetings. This may include regional radio, social media or the local council’s website.
Stakeholders feel the consultation process favours the applicant
Many stakeholders, particularly those who disagree with the Commission’s decisions, said that public meetings made no difference to the decision and were held by the Commission to give the impression of consultation. That is, it is a tick-a-box exercise held too late in the planning process.
Some community members felt that the consultation process favours applicants. In particular, they believed that applicants had more time with the Commission than they were granted. This includes Commissioners attending the site with the applicant.
Our review of cases did not find any evidence that the Commission spent more time with applicants than with other stakeholders. The Commission advised that meetings with applicants are generally for half a day and rarely longer, except in the most complex of proposals to ensure it gathers sufficient information about a development.
Stakeholders perceive the Commission to lack independence
While we did not find any issues that would make us question the integrity of the PAC, many stakeholders we interviewed perceived the Commission to be part of the Department, and not an independent decision-making authority. This was highlighted in a few of our interviews and in the public meetings we attended, where people regularly referred to the Commission as ‘the Department’. We identified a number of factors that could reinforce this view including:
- the Department’s role in managing the recruitment process for Commissioners
- that applications are referred to the Commission by the Department
- that the Commission becomes involved at the end of a lengthy process managed by the Department.
Some of these factors are beyond the Commission’s control because they are required by planning legislation or Ministerial delegation. However, there may still be things it can do to improve stakeholder’s perceptions about its role as an independent decision-making authority.
One key issue is that the Commission receives an application at the final stage of the development process, after the Department has prepared its assessment report recommending whether the application should be approved and any conditions to be imposed. This means there are effectively two reports on an application; the Department’s assessment report and the Commission’s report on its decision. However, there is only one decision-maker: the Commission. Having two reports may cause community confusion about the roles of the Department and the Commission in the decision-making process. It also reinforces perceptions that the Commission ‘rubber‑stamps’ the Department’s recommendations.
There is no legislative requirement for the Department to prepare an assessment report. However, the model whereby an expert body prepares an assessment for the decision‑maker is common in NSW and other jurisdictions (see Appendix 2). When the Commission was established, the government envisaged that the Department would continue to undertake assessments of projects. The Commission also advised that the Department’s assessment reports help it to perform its role efficiently, especially given the tight timeframes it is required to meet.
To minimise the perception that the Commission is acting on the Department’s recommendations, the assessment reports should not recommend whether or not a project be approved. Instead, they should provide the Department’s views on whether the project meets relevant legislative and policy requirements.
The Commission should also be involved at an earlier stage in the process to ensure that the Department’s assessment report covers matters Commissioners consider particularly important when assessing projects under section 79C of the EP&A Act. In practice, this would mean earlier referral of applications to the Commission once one of the referral criteria has been met. Giving the Commission earlier access to the application and any submissions, would help it establish key facts and identify relevant issues sooner in the process. This would help minimise the perception that the Department has already made the decision and that the Commission is only involved at the end of the process. It would also help the Commission to better organise and plan its work in assessing applications, and may reduce the time taken to reach a decision.
4.3 Making the decision
We found that there is a standard approach taken by Commissioners to make decisions on major development applications. This includes gathering and reviewing relevant information, consulting the public, the Department or other experts, and making a decision on an application. As the consent authority, the Commission is also required to consider the matters in section 79C of the EP&A Act. However, it was not able to show how it met this requirement in every decision we reviewed.
The Commission communicates every decision it makes to the public and stakeholders through its report. In the more complex matters we reviewed, the Commission addressed issues raised by the community. However, the level of detail varied and it was not always clear how conditions placed on a development would resolve these issues or how it addressed section 79C of the EP&A Act. An encouraging practice has been the recent use of fact sheets for some of the more complex or high public-interest matters, which more clearly explain the Commission’s decision to the public.
The Commission should by July 2017:
- keep better records of how it considers each matter under section 79C of the EP&A Act for all decisions it makes on major development applications
- continue to improve how it communicates the reasons for its decisions to the public by:
- including a summary in its reports of the issues raised during the consultation process and how they were considered by the Commission
- clearly outlining in its reports how any conditions placed on a development will address the issues raised
- detailing in its reports how section 79C of the EP&A Act has been addressed
- issuing fact sheets to accompany its reports for all decisions where public meetings were held.
4.3.1 Decision-making framework
A framework to assist Commissioners make decisions is in place
Although not clearly outlined in one document, the Commission has a framework in place to assist Commissioners make decisions. It is based on the EP&A Act, which identifies what they are to consider, together with various policies and procedures. Commissioners undertake the following key steps:
- review information provided by the Department
- request more information/further clarification as needed
- conduct a public meeting to obtain community perspectives where required
- collect further information from government agencies or other experts as needed
- debrief, assess and debate all information gathered to reach a decision
- discuss any conditions with the Department to ensure they are workable
- reach a consensus opinion and issue a public report outlining the decision.
Because each project is different in size, scope and complexity, Commissioners modify the steps to suit each individual project. For example, for an application involving a small modification to a car park that received no objections, there may be less need to request information from the Department or hold a public meeting.
It was clear from our meetings with Commissioners and our case review, that Commissioners followed the same steps to make a decision. Commissioners described the process as straight forward and advised that the Commission staff provided excellent support.
Documentation on how section 79C is considered is unclear
Section 79C of the EP&A Act outlines the matters the Commission must consider when making decisions about a development application. The Commission needs to be able to show that it considered these matters for each decision. It may give each matter a different emphasis or weighting, depending on its relevance to the proposed development.
The NSW Ombudsman has issued Good Conduct and Administrative Practice guidelines. These provide guidance on the principles of administrative decision-making. Some of these principles are:
- considering the relevant factors only
- giving affected parties the right to be heard
- not having a personal interest in the outcome
- acting only on the basis of sound evidence
- giving reasons for decisions
- considering relevant material and information.
Although the Commission applies these principles, in our review of cases it was unclear how it routinely considered the relevant factors, that is, the matters in section 79C of the EP&A Act. We found evidence in six of the nine cases we reviewed that some elements of section 79C were considered. These were discussed in the Commission’s reports or were recorded in meeting notes. Of these six cases, the degree to which the Commission considered all matters under section 79C varied considerably. The larger, more complex applications were more likely to address these considerations. For example, for a large mining project, it was clear in the report how environmental, social and economic impacts were considered as well as other planning instruments.
On the other hand, for a less complex urban development application we reviewed, it was unclear how most of the matters in section 79C were considered by the Commission.
The Commission advised that the Department’s assessment report covers section 79C including environmental, economic and social impacts of the development. However, as the Commission is the consent authority, it cannot rely on another agency to show how an application addresses this provision. It must demonstrate this itself, including its views on others’ considerations of section 79C.
The Commission needs to keep better records of how it considers the relevant aspects of section 79C, and include these in its reports on decisions. Section 3.2 discusses this further.
Documentation of the decision-making process has improved
Although there was limited documentation of how section 79C is considered, we found that record keeping has improved in other areas. The Commission staff and stakeholders we interviewed agreed that documentation of the process has improved in the last two years, especially following the review by the NSW Ombudsman. For example, there is now a template to ensure consistency in recording meetings with applicants and stakeholders.
As part our case review, we found documented evidence of:
- correspondence (letters, emails) to/from the applicant and stakeholders
- arrangements to set up the public meetings
- comments received via public meetings or other submissions
- meetings with applicants and other stakeholders
- emails between Commissioners and Commission staff recording changes to the report
- the report and draft iterations.
4.3.2 Preparing the report
Report is drafted by Commission staff with input from Commissioners
The Commission prepares a report for all development applications. The report outlines the Commission’s decision on the development application. It is the main means by which it communicates its decision to the public.
Commission staff draft the report based on Commissioners’ guidance on the issues to include. Commissioners review the report to make sure these issues are appropriately covered.
It is sometimes unclear how issues raised through consultation are addressed
In many of the case files we reviewed, the Commission addressed key issues identified by stakeholders. This was particularly the case for larger applications that involved public meetings, where we found evidence that the key issues raised were discussed in the report.
However, the level of detail provided varied. For example, some issues were discussed at length, whereas others noted only that the Commissioners agreed with another agency’s assessment. Similarly, it was not always clear how issues raised as part of the assessment process would be resolved by the development conditions.
The Commission advised that its reports vary according to the complexity of the application and any prior decisions. They are not stand-alone documents, but draw on the material already in the public domain.
We believe the Commission should address, or at least acknowledge, issues raised by the public. This includes explaining why concerns that were raised may not have been addressed as they are not relevant to the application being assessed.
Reasons for decisions generally provided but more detail on section 79C is needed
In our case review we found that the Commission generally provided reasons for its decisions, especially for the more complex applications. This included outlining any environmental or economic reasons that underpin a decision. However, none of the reports we reviewed clearly addressed each matter under section 79C of the EP&A Act. More clearly outlining this would further improve the transparency of the Commission’s decisions.
The Commission advised that it is standardising the report format, for example, one report structure for decisions with public meetings, and another for less complex applications. This may help address the issues above.
4.3.3 Publishing the report
The report is publicly available
Given the high level of public interest in applications referred to the Commission, it is important that its decisions are available to the public.
We found that all reports outlining the Commission’s decisions are available on its website. It also provides a link to the Department’s website, which includes other relevant planning documentation about an application.
The Commission’s website also includes up-to-date information on the status of all applications it has received for assessment. Publishing this information, along with its final decisions, improves the transparency of the Commission’s decision-making processes.
New fact sheets help communicate the Commission’s decision to the public
Fact sheets are now prepared for some decisions. Fact sheets distil the contents of the reports. They are easy to understand and are generally prepared for larger, more complex applications that are subject to a higher degree of public interest.
Fact sheets have improved the communication and transparency of the Commission’s decision‑making process. There is currently no trigger for using fact sheets and these are prepared at the Commission’s discretion. As a minimum, the Commission should prepare these for all decisions where public meetings are held.
Parliamentary reference - Report number #279 - released 19 January 2017