31 Oct 2019

What does the future hold for the IPC: Review of the IPC called for by NSW Government

By Claire Smith, Caitlin McJannett and Emma Whitney

Submissions to the NSW Productivity Commissioner on the role and future of the Independent Planning Commission are due by Friday 15 November.

Following a number of controversial decisions by the IPC, including imposing an unenforceable extra-territorial condition in the United Wambo approval, the NSW Government has announced it will review the role of the Independent Planning Commission (IPC), including whether it is in public interest to maintain the IPC.

The Review appears to follow targeted pressure on the NSW Government regarding delays and uncertainty in the planning system and decisions by the IPC. The IPC has also come under fire for its role in Star Casino Group's controversial proposal for a $500m development for its casino and hotel development at Pyrmont. According to Rob Stokes, the Minister for Planning of Public Spaces, "every referee needs a health check from time to time".

What is the current role of the IPC?

The IPC is a statutory body that was established under Part 2, Division 2.3 of the Environmental Planning and Assessment Act 1979 on 1 March 2018, replacing the NSW Planning Assessment Commission. The role of the IPC is to operate independently of government departments and is not subject to Ministerial control other than in relation to its procedure which is set out under the Act.

The IPC's primary function is to make decisions on State significant development and modification applications where:

  • there have been 25 or more objections to the application, or
  • the local council has objected, or
  • there has been a reportable political donation in connection with the application or to a previous related application.

This means that the IPC is frequently the decision-maker on large developments, including resource projects, urban development, industrial and infrastructure projects, waste management facilities, education establishments, as well as hospital and manufacturing facilities. The IPC's Annual Review for 2017-2018 reported that 65 projects were considered during that reporting period, with approximately half of the development proposals being located in Sydney.

Despite the IPC's role as the decision-maker, the bulk of the assessment of a state significant development application is undertaken by the NSW Department of Planning, Industry and Environment. However, as an independent body, the IPC can (and frequently does) make decisions that are contrary to the recommendation of the Department.

The IPC is comprised of several members with varying areas of expertise including planning, architecture, urban design, heritage, engineering, legal and traffic. Generally, for the determination of a statement significant development application, the Chair will appoint at least two members.

Details of the Review

The Review will be carried out by the NSW Productivity Commissioner, former Auditor General Peter Achterstraat, who was appointed last year with the primary task of cutting red tape in NSW.

The Terms of Reference for the Review are:

1. To recommend whether it is in the public interest to maintain an Independent Planning Commission considering, where relevant, the experience with similar bodies in other common law jurisdictions;

2. To make recommendations in relation to the Independent Planning Commission's operations and the mechanism by which State significant development is assessed and determined; and

3. Having regard to the above, identify any proposed changes to the Independent Planning Commissioner's current functions, processes for making determinations and resourcing. The issues to be considered include but are not limited to:

  • thresholds for the referral of matters to the IPC;
  • the clarity and certainty of policies and guidelines that inform determinations;
  • the adequacy of mechanisms to identify and resolve conflicts of interest by Commissioners;
  • the IPC's procedures and guidelines;
  • the Commissioners' skills, expertise and qualifications;
  • the extent to which the IPC should rely upon the assessment report prepared by the Department, taking into account any additional assessments by other Government agencies;
  • resourcing of the IPC and the mechanism for determining budgetary support; and
  • whether the IPC Secretariat should be employed directly by the IPC or provided by another Government agency, and if so, which agency.

Minister Stokes has said that "this review is an opportunity to reflect on how we can better serve communities where major projects are proposed and provide clearer processes for investors at the same time.”

The Chair of the IPC, Professor Mary O'Kane, has also released a statement welcoming the Review and pledging that the IPC will "work hard" to speed up its determinations.

A report on the Review is due back to Minister Stokes by mid-December 2019.

Call for submissions

The Commissioner for Productivity has invited anyone that would like to make a submission to the IPC review to contact the Productivity Commission by Friday 15 November. If you would like to know more about the role of the IPC in your projects, or need help in making a submission, please contact us.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.