On 8 August 2017, Minister for Planning and Housing, Anthony Roberts, and Minister for Local Government, Gabrielle Upton, announced that the NSW State Government will introduce a Bill to make Independent Hearing and Assessment Panels (IHAPs) mandatory for Sydney and Wollongong Local Councils (the Bill).

Although the draft Bill has not yet been made publically available, it is known that the Bill will propose a standardised model for IHAPs including a composition of three expert members (one of whom has legal or government and public administration expertise) and a community member, and that the Bill will provide clear and uniform criteria for referral of development applications (DAs) to the IHAPs.

This builds on the 2017 Draft Environmental Planning and Assessment Bill, which proposes to bring IHAPs under a single framework and give the Minister for Planning power to direct a Council to appoint an IHAP.

This article considers the purposes that IHAPs serve and the matters which should be considered and provided for by or in coordination with the Bill to meet those purposes.

The Purpose of IHAPs

The first IHAP was established by Liverpool Council in March 1997 in response to a drastic increase in development in the area, and an increased apprehension of the risk of corruption associated with planning and development matters.

These considerations continue to be relevant to the ongoing purpose of IHAPs.

IHAPs play a key role in reducing the pressure on Councils caused by an increasing number of DAs, a trend that is likely to continue with Sydney’s growing population. The risk of corruption also continues to be an issue in the Local Government and planning area. For example, in the 2015-2016 period, 45% of public complaints made to the Independent Commission Against Corruption (ICAC) were about Local Councils, with 27% of all public complaints relating to development applications and land rezoning.[1]

There are three broad ways in which IHAPs achieve their purpose, and from these, this article will consider recommendations for an effective IHAP that will hopefully be included in the Bill, or otherwise considered in establishing new IHAPs under the Bill. They are:

  1. The ability of IHAPs to relieve some of the burden on Local Councils by partitioning complex or controversial development applications and applications which may attract political ramifications;
  2. Increasing the efficiency and integrity of the determination process– allowing for specialist input into the determination process and depoliticising decision making; and
  3. Facilitating transparency and community engagement to combat the risk of corruption and bias in decision making.

Relieving the pressure on Councils and Councillors

IHAPs provide independent expertise not ordinarily a part of a Councils’ DA evaluation process. Where a Council officer lacks the technical skills or expertise necessary to effectively consider or advise on all aspects of proposed development, the assessment process can be stalled. An advantage of an IHAP is that the panel is constituted by independent panellists with the expertise relevant and necessary for determining complex DAs.

When an application is referred to an IHAP, Councillors are relieved of their obligations in respect of the development decision. The obligations of a Councillor, as described in the Department of Premier and Cabinet’s document ‘your obligations as a councillor’ are to:

… ensure that development decisions are properly made and that parties involved in the development process are dealt with fairly. You must avoid any occasion for suspicion of improper conduct in that development assessment process. In determining development applications, you must ensure that no action, statement or communication between yourself and applicants or objectors conveys any suggestion of willingness to provide improper concessions or preferential treatment.

IHAPs must effectively assume the place of a Councillor and take on this obligation when discharging their duties in considering applications before them.

By referring complex or contentious matters to an IHAP and relieving Councillors of their consideration of some complex DAs, Councils are able to reallocate these resources to focus on strategic planning and policy development, rather than individual DAs. This was a key issue identified by the 2012 review of the planning system in NSW. By taking on complex and contentious DAs, IHAPs allow Councils to focus less on individual developments and more on long term strategic planning.

In the 2014-2015 period, only approximately 0.7% of DAs were referred to IHAPs.[2] Going forward this shows that there is significant scope for the Bill to increase the capacity of IHAPs in the Sydney area by creating new IHAPs, and streamlining the process for referral to IHAPs.

Efficiency and integrity

The main role IHAPs play is to depoliticise the determination of DAs. This is ensured by each IHAP’s Charter providing for the ongoing independence of panellists both in terms of independence from the Council and in ensuring panellists do not have any pecuniary or other interest in the area that may affect their objectivity.

Because IHAPs are comprised of independent panellists with expertise relevant to the proposal, IHAPs can reduce the number of appeals against DA refusals by providing comprehensive, substantive assessment of complex applications. In addition, the decisions reached are seen to be objectively determined and the determinations often employ a higher degree of articulation.

Transparency and Community Engagement

IHAP panels facilitate community representation and engagement in planning decisions. The IHAP procedure creates a forum for objectors to voice their concerns in the development evaluation process, allowing for third party concerns to be addressed as a part of the DA determination. This can reduce third party appeals against determinations (or give Councils an early indication that there may be a third party appeal if the application is approved with unresolved objections).

The public meeting format utilised by established IHAPs allows objectors and supporters to engage with the determination process which is key in maintaining the integrity of the process. The meeting also allows the panel to engage with the issues raised by objectors and to gain a better understanding of the basis and substance of their objections.

Requirements of the Bill and new IHAPs to be established

The most important delegation for an IHAP to be given is the delegation to determine the DAs that are referred to it. Some established IHAPs are given only a recommendatory role, that is, to make a recommendation to the Council. However this not only adds an unnecessary layer in the DA process, it reduces the efficiency of the assessment process, limits the utility of the panel and ultimately does not achieve the purpose of independence that IHAPs are intended to have. As such, the Bill should prescribe that all mandatory IHAPs are given the delegation to determine the DAs referred to them, or this should otherwise be considered for new IHAPs.

A hurdle which will need to cleared by the Bill or the implementation of the mandatory requirement for IHAPs is in providing for the resolution of conflicts that may arise by virtue of the fact that expert panellists regularly have commercial practices in the area in which they act as experts on an IHAP. A potential way in which these conflicts can be managed is by adopting a code of conduct (similar to the expert’s code of conduct proscribed by Schedule 7 of the Uniform Civil Procedure Rules 2005 (NSW)) to impose a rigorous set of obligations of impartiality on experts sitting on IHAPs.

In addition, it will be important that the Bill or implementation provides for IHAPs to be delegated power to review IHAP determinations. Section 82A of the Environmental Planning and Assessment Act 1979 (NSW) provides that an applicant can request a review of the determination. As part of this review the applicant may make amendments to the original development considered (so long as the development remains substantially same as that originally considered). Section 96AB contains a similar review right in respect of modification applications. Ensuring IHAPs are given these delegations maintains efficiency in the process and continuity where amendments are made as part of the review to remedy objections heard by the panel.

Currently, the criteria for referral of matters to IHAPs vary between Councils depending on what has been considered to be particularly relevant in the Local Government Area. Generally, the criteria are referrable to:

  1. The number of unresolved objections to a DA;
  2. The complexity of the application (being a measure of size, capital investment value, or some other factor);
  3. The discretion of Council, Council Committee or General Manager where an application is considered to be best dealt with by the IHAP. This could be the case where there is some other public interest consideration at play, for example if the applicant is the Council or a Councillor; and
  4. Variation from development standards – where a DA contravenes a development standard an IHAP may be utilised to determine the application under clause 4.6 of the relevant LEP. This involves the IHAP determining whether the relevant development standard is in the circumstances unreasonable or unnecessary, or if there are sufficient environmental planning grounds to justify approving the DA in contravention of the standard.

IHAP referral criteria are important to ensuring an IHAP fulfils its purposes. The Bill may play an important role in standardising the criteria across Local Government Areas and prescribing the scope of IHAP referral. At this stage, the Ministerial press release of the Minister for Planning and Housing, The Honourable Anthony Roberts MP states that the Bill will provide for IHAPs to determine DAs and modification applications:

  1. with a value of between $5 million and $30 million;
  2. where there is a potential conflict of interest, where the applicant or owner is the Council, a Councillor, a member of a Councillor’s family, a member of Council staff, or a state or federal member;
  3. which have received 10 or more objections from different households, and accordingly is considered contentious;
  4. which are accompanied by a proposed voluntary planning agreement;
  5. which vary from a development standard by more than 10%;
  6. that are considered to be associated with a higher risk of corruption being:
    1. residential flat buildings under SEPP 65;
    2. demolition of heritage items;
    3. licensed public entertainment and sex industry premises; and
    4. designated development, as set out in the Environmental Planning and Assessment Regulation 2000 (NSW).

Conclusions

In summary, to be effective at meeting the objectives of IHAPs, the Bill for mandating IHAPs in Sydney and Wollongong local government areas (and its eventual implementation at law) should consider provisions for the following:

  1. Ensuring transparency and integrity when selecting Panel members. It is anticipated that the Bill will provide that new panel members must be ministerially appointed.
  2. Referral criteria should contemplate the key purposes of the IHAP. Despite the uniformity of referral criteria indicated in the Ministerial press release, the operation of the IHAPs would benefit by the inclusion of some discretion for Councils to consider and give weight to key planning issues/considerations within the local government area when referring matters to the IHAP.
  3. IHAPs should have the requisite delegated authority to determine the applications referred to them and to review their determinations when requested by an applicant under the EPA Act (i.e. s 82A and s 96AB applications).
  4. Standardising the reporting of IHAP determinations – this will promote consistency between IHAPs, and ensure all panels are determining the applications before them with adequate consideration of, amongst other things, the Land and Environment Court’s Planning Principles.

It is anticipated that Councils that do not have an existing IHAP will be required to constitute a panel from 1 March 2018.