By Aaron Gadiel, Partner
There’s been a lot said about the new Greater Sydney Commission since it formally came into effect on 27 January this year.
We’ve fielded many questions from clients looking to understand what the new Commission means for rezonings, planning control changes and development assessment in Sydney.
While the legislation establishing the new Commission is laudable, we can see that a lot of work is still required on the implementation of the new decision-making structure.
Regretfully this has lead to some confusion about exactly who is responsible for making key decisions about Sydney’s future. This is of particular concern for those who are pursuing rezonings with a difficult local council.
This article sets out some of the common questions put to us — and our answers — in the first two-months of the Commission’s operation.
The Commission is a new institution that has been created by the Government. It is an answer to the often-repeated criticisms that Sydney’s 41 local councils were too fragmented for proper whole-of-city land use planning.
Even if all of the proposed local council amalgamations proceed, there will still be 25 local councils within the Sydney metropolitan area. It is widely recognised that this number is still too large to deliver effective metropolitan-scale (or even district-wide) land use planning decisions.
The Commission is the government’s solution to this problem.
The Commission will prepare, exhibit and finalise district plans for each of Sydney’s six districts. It will prepare and exhibit any new metropolitan strategy for Sydney (although the Planning Minister has the final approval role for that document).
The Sydney planning panels that are associated with the commission would if established, have a development consent role (for larger developments). They may handle pre-gateway reviews (for rezonings and changes in planning controls).
The district plans and the metropolitan strategy (A plan for growing Sydney) are strategic plans. This distinguishes them from the existing regime of ‘environmental planning instruments’ — that is, ‘local environmental plans’ (LEPs) and ‘state environmental planning policies’ (SEPPs).
In Sydney, district plans are to be prepared and finalised by the Greater Sydney Commission. The Commission is required to ensure that the public exhibition of the draft district plans commences by 28 January 2017. The district plans are similar to the intended ‘subregional’ plans under past (aborted) planning reforms.
There is no requirement for the district plans to be finalised by any particular date (and there is a long history in NSW of draft strategic plans being ‘kicked into the long grass’).
Land use zones, height, floor space ratios, etc. are still contained in LEPs and SEPPs.
When district plans are finalised they do not, in themselves, change these controls.
There is a legislative obligation on ‘relevant planning authorities’ (usually local councils) to ‘give effect’ to:
when preparing planning proposals (for rezoning or changes to planning controls).
A similar obligation is placed on local councils in relation to LEP reviews.
It is the job of the Greater Sydney Commission to ensure that Sydney’s local councils comply with the obligation to ‘give effect’ to district and metropolitan plans.
There are three main ways the Commission can do this.
Firstly, it can use ‘soft power’. That is, provide advice and publish reports on performance. Most of the public focus (by the Government and the Commission) has been on this form of leadership.
Critics of the ‘soft power’ approach highlight the long-history of local councils simply ignoring attempts to influence them in this way. ‘Naming and shaming’ only works if those being named are capable of feeling shamed!
Sometimes local councils respond to ‘soft power’ by pretending to agree, but ensuring efforts are frustrated in the fine detail of plans, policies and approvals.
Other times, local councils engage in overt acts of defiance that, in the past, have often gone unanswered by state authorities.
Secondly, when a planning proposal is submitted by the local councils for a ‘gateway determination’ (prior to public exhibition) the Commission can vary the proposal and impose requirements on how the planning proposal is to be progressed. (‘Planning proposals’ are the main mechanism for changing the planning controls set out in LEPs).
This second approach has its limitations. Regretfully, in our experience, gateway determination obligations are routinely breached by local councils. A local council is breaking the law if it breaches its obligations under a gateway determination, however it is difficult (if not impossible) to enforce these obligations in the courts.
The (past) lack of enforcement means that gateway determination obligations are frequently not taken seriously by local councils.
Thirdly, the Commission can remove the local council as a ‘relevant planning authority’.
The Commission can do this, for example, in any one of the following situations:
has recommended to the Commission that the proposal should be submitted for gateway determination and/or finalised;
This is where the Commission really has some teeth. However, the Department had similar powers but rarely exercised them (and when it did exercise them it was on an ad-hoc basis).
For the Commission to meaningfully change the conduct of local councils across-the-board it will have to demonstrate that:
The ‘members’ of the Commission are:
The Commission is supported by its chief executive, Sarah Hill.
When decisions are made by the ‘members’ of the Commission, they may be decided by majority vote.
The ‘members’ of the Commission are ultimately responsible for the Commission’s decisions in relation to the strategic plans (i.e. the district plans and future Sydney-wide regional plans).
However, many of the key-decisions of the Commission may not actually be made by the 13 commissioners sitting together.
Perhaps because of the difficulty in getting agreement from such a large, diverse group, the Commission has been structured so that the substance of key issues will be dealt with in various committees (e.g. the Strategic Planning Committee) and associated panels.
It seems likely that the ‘at-large’ commissioners (Lucy Turnbull, Rod Simpson, Heather Nesbitt and Geoff Roberts) will not have routine formal involvement in the consideration of individual private sector development projects/rezoning.
Issues of particular concern to individual developers are likely to be dealt with by the Sydney planning panels (if/when established), chaired by the district commissioners (i.e. Maria Atkinson, Deborah Dearing, Ed Blakely, Sean O’Toole with two more yet to be announced).
A good question. No information is available on how development proponents can meet with commissioners when issues arise or development proposals are being formulated.
This has the potential to be a big problem.
At present, officers of the Department of Planning and Environment are acting as representatives (‘delegates’) of the Commission on key matters, such as the issuing of gateway determinations and decisions about whether a local council should be replaced as ‘relevant planning authority’.
It is unclear how these officers will themselves liaise with the Commission to ensure that their actions reflect the Commission’s approach. As a result, development proponents cannot be sure that advice given by Departmental officers actually reflects the disposition of the relevant district commissioner, the chief commissioner or the Commission’s chief executive officer.
This is the new model’s biggest vulnerability. If this issue is not satisfactorily resolved it may mean that the Commission is merely another layer of bureaucracy, adding to the layer already imposed by the Department of Planning and Environment.
There seems to be some debate going on within the Commission and the public service on how to grapple with this problem. This is an issue to watch.
There has been much talk of new ‘Sydney planning panels’. However, they do not yet exist.
The legislation allows the existing Sydney East and Sydney West joint regional planning panels to be abolished and replaced by new ‘Sydney planning panels’ associated with the Commission.
Significantly, there is no legal requirement for this to actually happen. If and when it happens is entirely at the discretion of the Planning Minister.
The Greater Sydney Commission website says that the Sydney planning panels will be become operational in late 2016, or when the District Plans become effective (which may be well into 2017 or later).
It now seems that the government is open to the existing Sydney East and Sydney West joint regional planning panels continuing for some time.
If the Sydney planning panels are created, their composition will be similar to the existing joint regional planning panels. The chairperson is the key point of difference.
Under the new arrangements, the current chairs of the Sydney East and Sydney West joint regional planning panels would be replaced by the relevant Greater Sydney Commission district commissioner. Effectively, the two-panel structure of the existing Sydney region would translate into six panels, each under a different chairperson.
As with the existing joint regional planning panels, the chairperson will be joined by:
These panels will be responsible for granting development consents (outside the City of Sydney) for:
It seems that matters currently dealt with by the joint regional planning panels (e.g. development consents and pre-gateway reviews of proposed spot rezonings) would be dealt with by the Sydney planning panels.
However, the extent to which a Sydney planning panel (or a joint regional planning panel) exercises any functions of the Commission (for example, making of gateway determinations, following a pre-gateway review or removing a council as a ‘relevant planning authority’) will need to be decided by the Commission itself.
The details of the precise allocation of power are not yet known.
This is yet another area that will need to be watched.
The Greater Sydney Commission’s new powers largely come at the expense of the formal powers of the Planning Minister.
The Commission is not subject to the control and direction of the Minister for Planning — except to the extent that any legislation specifically provides.
The new legislation gives the Minister the following roles in relation to the Commission:
The Government has prepared a ‘Statement of Priorities’ for the Commission in its inaugural period from January 2016 to October 2018. This document would appear to be an exercise of some of the Minister’s statutory powers over the Commission (although the legal basis for at least some of the statement’s contents is not clear).
However, there is an important matter that cannot be overlooked. The Commission has few staff of its own. This makes the Commission heavily dependent on the staff of the Department of Planning and Environment.
At least for now, much of the Greater Sydney Commission’s powers over planning controls have been ‘delegated’ to officers of the Department and local councils.
This does not appear to have come about because of any deliberate decision of the Commission. The delegation is apparently in place under the transitional arrangements surrounding the Commission’s establishment.
As the Department ultimately works for the Planning Minister, it may be a mistake to assume that the Planning Minister no longer has any role in resolving difficult Sydney planning issues.
Additionally, the Secretary of the Department of Planning and Environment reports to the Planning Minister and is a member of the Commission, along with other departmental heads.
In short, while the Commission creates the possibility for key decisions to be made at arms-length from state politicians, state politicians may still play a role in the resolution of some planning matters.
In the short-term, the emergence of the Commission has made the planning landscape in NSW more complex.
It is unclear when the Commission will decide matters for itself and when it will leave matters for its ‘delegates’.
The delegation of the Commission’s power means that the split of responsibilities between local councils, the Department of Planning and Environment, and the Commission itself is presently ill-defined. This opens up the possibility of turf wars.
Additionally, the Commission’s own complex structure also clouds the process. When a decision is to be made by ‘the Commission’ it cannot be said with any certainty who the actual decision-maker will be. For example, depending in the ‘delegation’ that is ultimately adopted by the Commission, it could be:
There is no document publicly available (right now) that sheds light on this.
All of this is particularly worrying given that there is no assurance that development proponents will even be able to get a hearing from the commissioners themselves.
In short, a clear path through the bureaucratic maze has not yet emerged.
We can only hope that this issue is one in which the Department, the Commission and the Government are firmly focused on resolving quickly.
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