Reports
Assessing major development applications
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.
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.
Conclusion
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.
Parliamentary reference - Report number #279 - released 19 January 2017
Implementation of the NSW Government’s program evaluation initiative
The NSW Government’s ‘program evaluation initiative’, introduced to assess whether service delivery programs achieve expected outcomes and value for money, is largely ineffective according to a report released today by NSW Auditor-General, Margaret Crawford.
Government services, in areas such as public order and safety, health and education, are delivered by agencies through a variety of programs. In 2016–17, the NSW Government estimates that it will spend over $73 billion on programs to deliver services.
Parliamentary reference - Report number #277 - released 3 November 2016
Red tape reduction
Overall, NSW Government initiatives and processes to prevent and reduce red tape were not effective, according to a report released today by the NSW Auditor-General.
In 2015, the Government reported that its red tape reduction initiatives, implemented between 2011 and 2015, had resulted in $896 million in savings. While these initiatives resulted in some savings, the total value of savings is unknown because estimates for some initiatives were based on unverified assumptions, cost transfers or unrealised projections.
Parliamentary reference - Report number #272 - released 25 August 2016
