The Green Paper proposes a number of significant departures from the current approvals system, which include recommending the removal of elected councillors from the decision-making process at a local level. In their place, the Green Paper recommends the appointment of an independent expert panel or of council staff acting under delegation, as the appropriate decision-makers.
Depoliticised decision making
The Green Paper proposes to “strengthen” the decision-making of Joint Regional Planning Panels (JRPPs) and the Planning Assessment Commission (PAC). Interestingly, the Green Paper recommends changes to the way in which both of these entities make decisions. In the case of JRPPs, the Green Paper recommends a much earlier involvement in the decision-making process, with the result that JRPPs would be involved in pre-lodgment meetings with proponents and would be able to engage in regular briefings. The Green Paper goes so far as to suggest that JRPPs may have their own dedicated staff. These recommendations appear to be responsive to concerns widely expressed during the consultation process that JRPPs are presently too remote from proponents during the development assessment process.
Similarly, presumably in response to submissions, the Green Paper recommends that the PAC play what appears to be a more limited role, namely to evaluate the evidence-based merit assessment by the Department, particularly submissions and a proponent’s response to them, rather than re-assessing a proposal itself.
Code assessable development
The Green Paper advocates the expansion of “code assessable” development, although there are a number of unresolved questions as to how this will be implemented.
The Green Paper proposes that fully complying development cannot be refused, and will be approved within 10 days. It is not clear whether the 10 day timeframe will be a guideline or benchmark, or a period with statutory force.
The Green Paper states that code assessable development will be development which meets applicable standards in a subregional plan or a concept development, which raises again the question as to the way in which complying development controls will be established. The Green Paper contemplates that in some cases the Subregional Delivery Plan will not contain all of the necessary standards and requirements, and that in those cases it will be the consent authority (council or JRPP) which conducts a combined code assessment and merit assessment for a proposal against strategic objectives in the plan.
This is an obvious area where further detail is critical in order for proponents to gauge the extent to which the reforms discussed in the Green Paper will, in practice, lead to a greater availability of code assessable development.
State significant development
The Green Paper proposes a suite of reforms to streamline the assessment of state-significant development. One novel reform proposed in this regard is that the consultants who prepare environmental impact statements for state-significant development should be chosen from an accredited panel, and required to meet certain standards regarding the impartiality and quality of their work. Further, the Government is reportedly considering options to codify or streamline the EIS requirements when appropriate. This change represents a significant departure from the present position that proponents are able to select their own consultants, and appears to have its genesis in the questions for discussion identified by the Independent Panel in December 2011.
A further reform which no doubt will be welcome in the area of State significant development is the introduction of a case management approach to deliver better integration between proponents, councils and other agencies, and to enable speedy resolution of inconsistent agency requirements.
Expanding appeals and reviews
The Green Paper proposes the expansion of the existing review mechanisms under section 82A and section 96AB of the EP&A Act. These reviews are proposed to be undertaken by an expert who was not involved in making the original decision. For example, if the development was determined by Council staff, the review must be undertaken by a more senior staff member. The Green Paper also specifies that where the original decision is made by the JRPP or PAC no review mechanism will be available.
More generally, the Green Paper proposes that existing rights of appeal under the EP&A Act would be maintained. Presumably this means that present avenues of access to the Land and Environment Court will not be changed, although this will need to be carefully reviewed when the draft legislation is released.