Quantcast

06 Feb 2020

NSW Productivity Commission: Independent Planning Commission should be retained, but with major reforms

By Claire Smith, Emma Whitney, Anji Sivakumar and Xara Kaye

These changes to the Independent Planning Commission are in keeping with the Berejiklian Government's desire to cut red tape, increase transparency, and reduce assessment timeframes in the planning system.

The NSW Productivity Commission's review of the State's Independent Planning Commission (IPC) has concluded that it should remain but will undergo significant reform with new performance benchmarks, streamlined processes, greater accountability, and clarifying that the IPC will act as a decision-maker on the State's most controversial projects (rather than providing a technical review function). All 12 recommendations have been accepted by the Government, though it is unclear when any changes will come into effect.

The Independent Planning Commission's role

The IPC is responsible for determining NSW's most significant, and often contentious, development applications. It has been widely criticised by stakeholders for its lack of certainty and consistency, and for unreasonable delay. The call for review stemmed particularly from a series of refused proposals, notably the $290 million proposal for the Bylong Valley coal mine by South-Korean entity Kepco and the Star Casino Group's proposal for its casino and hotel development in Pyrmont.

The Productivity Commission received a total of 147 written submissions from peak bodies, local government authorities, stakeholders, environmental groups, and the local community, in addition to 2881 campaign submissions including from Lock the Gate and Nature Conservation Council. The Productivity Commission also undertook face to face consultation sessions with stakeholders such as the Environmental Defender's Office, Local Government Associate, NSW Minerals Council and the Planning Institute of Australia.

The Productivity Commission's review concluded that it is in the public interest to retain the IPC, noting "the public and open processes… help build public confidence and trust". It also acknowledged the IPC's role in minimising undue influence and ensuring independence of the State's planning system.

The review recommends formally establishing the IPC as a separate agency and reviewing financial arrangements to reinforce its independence and to support its functions. The review also recommends that the IPC should transition to a smaller pool of Commissioners, with a stronger focus on decision-making skills rather than technical expertise (with expert advice to be sought separately), and for the IPC Secretariat (office of the IPC) to develop and implement arrangements to formalise the independence of the IPC from the office of the Department of Planning Infrastructure and Environment (DPIE) including renaming the Secretariat to the Office of the IPC to better reflect the Secretariat's role.

Main changes to the IPC

The Minister has announced that the major changes arising as a result of the Productivity Commission's review will be:

  • Ensuring the IPC is a separate and independent body, by holding its Chair accountable to the Minister for Planning and Public Spaces and Government's approved objectives and measures;
  • Clarifying the role of the IPC as independent decision-maker to maintain efficiency, by shifting the focus to "decision-making" rather than review of the Department's technical work;
  • Introducing single-stage public hearing processes to ensure expediency and utility of resources;
  • Limiting the IPC's role to act as final arbiter only on the State's most contentious projects, which have received 50 unique community objections (as opposed to the previous 25); and
  • Implementing accountability mechanisms and tighter deadlines to ensure timely decisions.

The IPC's overhaul and restructure will be headed by Acting IPC Chair Peter Duncan.

These changes are in keeping with the Berejiklian Government's overall reform objectives for the planning system to cut red tape, increase transparency, and reduce assessment timeframes.

The 12 recommendations, provided to the Minister in mid-December 2019, focused on strengthening the independence and governance of the IPC, and improving performance. The NSW Government has adopted all recommendations, noting that some have already been identified by both the IPC and DPIE and are currently being progressed.

NSW Opposition Leader and Shadow Minister for Planning and Better Living, Adam Searle, welcomed the main findings of the review, but outlined the following as persistent problems for the IPC:

  • Lack of adequate resourcing from the NSW Government;
  • Lack of independence from the Department of Planning (given the IPC is staffed by departmental officers); and
  • Employment of part-time commissioners in lieu of permanent members.

What next?

The actual effect of the review may not be felt for several months, as it has not yet been announced when the restructure and refocus of the IPC will commence. Stakeholders remain hopeful that reforms will produce a more efficient and predictable process.

RELATED KNOWLEDGE

Related Knowledge

Get in Touch

Get in touch information is loading

Disclaimer

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.