Tackling Corruption Risks in Planning Panels: New Measures Announced

KEY TAKE-OUTS:

• There are 36 Local Planning Panels and 9 Regional Planning Panels across New South Wales
• The Panels handle decisions in relation to sensitive, contentious and complex development applications
• The Department of Planning has introduced changes to the operation of the Panels to address corruption risks

Changes to the operation of the Sydney District Panels and Regional Planning Panels (collectively the ‘Regional Planning Panels) and the Local Planning Panels have been introduced by the Department of Planning and Environment (Department).

While the changes to the Regional Planning Panels have commenced. The changes to the Local Planning Panels will not come into effect until 24 April 2023.

What are the changes?

Changes to the Regional Planning Panels

The changes to the operation of Regional Planning Panels include:

• Requiring Regional Planning Panel members to be rotated regularly to randomise panel membership.
• Requiring Council to arrange probity checks on council nominees for Regional Planning Panel members, including a police check, a bankruptcy record check and a public register of real estate agents check. This aligns the requirements for council nominees with the requirements for State nominees.
• Requiring proposed council nominees to complete a statutory declaration to indicate that they are not a real estate agent or a property developer as required by subsection 2.13(3) of the Environmental Planning and Assessment Act 1979. This aligns requirements for council nominees with the requirements for State nominees.
• Encouraging councils to appoint a minimum of 4 alternate council members that can sit on their relevant Regional Planning Panels to enable regular rotation.
• The Department has also indicated that they will appoint a minimum of 60 experts in the pool that Regional Planning Panels are able to choose from. The Department has indicated that recruiting for those appointments is in progress.

Changes to the Local Planning Panels

The changes to the operation of Local Planning Panels include:

• Mandating a minimum of 15 experts (currently 8 experts) and four community representatives in pools for Local Planning Panels.
• Requiring Local Planning Panel members to be rotated regularly to randomise panel membership.
• Requiring probity checks, including a police check, a bankruptcy record check and a public register of real estate agents check for community representatives in Local Planning Panels.
• Requiring Councils when appointing nominees to have proposed nominees fill out a statutory declaration to indicate that they are not a councillor, a real estate agent or a property developer as required by subsection 2.18(3) of the Environmental Planning and Assessment Act 1979.
• Clarifying that applicants can request to formally meet with Local Planning Panels to brief them on any project.
• Implementing a framework for the Department to induct Local Planning Panels.

These changes come into effect on 24 April 2023 in order to give councils time to recruit additional panellists. Until that date the previous Operational Procedures Direction dated 30 June 2020 and Appointment of New Members Direction dated 12 December 2018 remain in force.

Reasons for the reforms to the operation of the planning panels

While the Department is not aware of any inappropriate lobbying or undue influence of planning panels, these changes are likely to be reflective of a wider NSW Government approach in relation to corruption risks in local government.

The intention of the changes is to reduce certainty about who will sit on the planning panels, therefore making it more difficult to predict who will make decisions on particular projects. The changes further reduce the potential for applicants to influence and improperly lobby panel members.

Conclusion

Councils should as soon as possible consider whether further persons are to be appointed as alternate members to the Regional Planning Panels and how best to manage the new probity requirements.

Preparation for the forthcoming changes to the Local Planning Panels should also be commenced.

The Department has flagged that it is also:

• Updating rules and guidelines to support more frequent rotation of Local Planning Panel members;
• Recommending that Local Planning Panels be monitored to ensure they are adequately rotating their members.
• Preparing procedures and induction materials for newly appointed Local Planning Panel members to ensure they are aware of their responsibility to report lobbying.

The Department has also released the Local Planning Panels Direction for appointment of New Members from 24 April 2023, alongside the updated Local Planning Panels Direction – Operational Procedures. We have set out below a link to those updated documents:

• The Local Planning Panels Direction – Operational Procedures applicable from 24 April 2023 is available here.
• The Local Planning Panels Direction – Appointment of New Members applicable from 24 April 2023 is available here.

Should you require any assistance understanding the above documents or to prepare for the changes, Coutts’ Local Council, Environment and Planning team can assist.