29 September 2011
The NSW Department of Planning and Infrastructure have published procedures outlining how the Planning and Assessment Commission (PAC) will make decisions.
We are told that the purpose of the document is to establish clear meeting procedures for the PAC in its decision making processes for major developments of state significance. For instance, the procedures say that where there have been more than 25 submissions made about an application the PAC must hold a public meeting before making a determination of the application.
If necessary, the Commission may meet with the relevant Councils, Government agencies, the Department of Planning and Infrastructure and the proponent to seek clarification on issues. Where there are less than 25 public submissions the Commission will generally meet the Department of Planning and Infrastructure, the relevant Councils (where they have objected to the application) and the proponent, before determining an application. The procedures are here.
Significantly, a copy of the Director-Generals Environmental Assessment Report and Recommendation must be publicly available before a public meeting. We understand that even when there is no public meeting, the report and recommendation will now be made public (on the internet) before a decision is made by the Commission. The Commission is also now expressly required to meet with people interested in the proposed development in the context of the Director-Generals report and recommendation.
This is likely to change the character of the Part 3A/state significant development decision-making process. In the past the Director-Generals report was prepared after all the relevant consultation, and was the penultimate step in the process, immediately prior to a decision by the Commission. In our view, issues raised in public meetings, and by interest groups, after the Director-Generals report has been published, and prior to a Commission decision being made will mean that considerable back-and-forth (between proponents, councils, the Commission and objectors) will now take place at a later stage of the process.
If this proves to be correct, the finalisation of the Director-Generals report may end up just being intermediate (rather than penultimate) step in the decision-making process. As objectors are likely to be vocal directly to the Commission on aspects of the Director-generals report that they do not like, applicants may need to be prepared to argue for aspects of the report they agree with, and argue against aspects of the report they are concerned about.
It will be interesting to see whether or not the Commission sees its role as merely winding back the intensity of developments supported by the Department of Planning and Infrastructure or whether they will be willing to allow more development capacity than was originally ensilaged. Either way, particularly when there is a requirement for a public meeting, this new process is likely to make the Commission feel obligated to differ with the Director-Generals report, in order that the consultation process does not seem like it was pointless.
