16 December 2010
Earlier this year the NSW Department of Planning and the Independent Commission Against Corruption (ICAC) established a joint task force to examine whether there were corruption risks attached to Part 3A and the Major Development (MD) SEPP, and to develop measures to address any of the identified risks.
As a result of this work the ICAC has this week released a report recommending changes to the way that Part 3A works. The Department of Planning had input into the ICACs report, but has not endorsed the ICACs findings. The ICAC did not consult directly with industry or other stakeholders on the content of its report.
The ICAC said that: there are no established examples of the corrupt use or manipulation of discretion under Part 3A or the MD SEPP.
There is, nonetheless, considerable discretion built into Part 3A and the MD SEPP, and similar kinds of discretion have been the subject of several Commission investigations and investigations in other jurisdictions in Australia and beyond, the ICAC said.
The ICAC says that the existence of a wide discretion to approve projects that are contrary to local plans and do not necessarily conform to state strategic plans has the potential to deliver sizable windfall gains to particular applicants. This creates a corruption risk and a community perception of a lack of appropriate boundaries.
The ICAC said it understood that there can be policy disagreements between local and state governments …, and that it is usual for the state to have some mechanism to override policy settings preferred at the local level.
However, the ICAC also said that the use of Part 3A as a short cut to rezoning as a result of difficulties in keeping LEPs up to date is problematic, and does not sit comfortably within [the] legislative and policy scheme.
Rezoning can greatly increase the value of land and has been central to many instances of proven
corruption.
The ICAC makes a series of recommendations which will inevitably feed into the (likely) forthcoming review of planning legislation. The recommendations include the following:
- The Department of Planning should expedite the modernisation process for local environmental plans (because this will technically reduce the need for Part 3A concept plan authorisations).
- Part 3A should only be available for projects that are permissible under existing planning instruments.
- Joint regional planning panels should be given the Planning Ministers authority to determine rezoning proposals for prohibited aspects of Part 3A.
- The NSW Minister for Planning should refer private sector Part 3A applications, which exceed development standards by more than 25 per cent, to the Planning Assessment Commission (PAC) for determination.
- There should be a fundamental review of the PACs arrangements. The review would consider whether the PAC should be given quasi-judicial status with members appointed on a full-time basis.
- The tenure of members of the PAC should be limited to two terms, and that PAC members be prohibited from re-appointment to the PAC after this period has expired.
- The ability of the NSW Minister for Planning to appoint and dismiss members of the Planning and Assessment Commission should be subjected to Parliamentary scrutiny or other independent scrutiny.
- The PAC should, by law (rather than ministerial delegation) determine any Part 3A developments: concerning political donors; in the ministers own electorate; or in which the minister has a financial interest.
- There should be statutory guidelines setting criteria for studies and assessment and for proposed state significant sites.
- The NSW Department of Plannings gateway review guidelines should be amended to include meaningful and objective reference points for considering the reasonableness of what is being proposed and be given statutory status. These guidelines would be used to screen residential, commercial and retail development projects that exceed $100 million in value, with a view to limiting access to Part 3A.
- Objectors should be entitled to lodge third party merit appeals against Part 3A approvals where the project constitutes a major departure from existing development standards.
The ICACs media release is here. Their full report is here. The Governments media release in response is here. The NSW Opposition’s response is here.