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Land and Environment Court - Working Party
4.4 Training of local councillors
The Working Party assumes that lThe Working Party considers that local councillorss, as a group, are better informed about the planning system than the general population. Nonetheless, the Working Party has identified areas where training could improve the decision making. For example, a better understanding of “stop the clock” provisions may reduce the number of deemed refusals.
The Department of Local Government reported that:
“Numerous applicants have cited the failure of councillors to properly understand or appreciate planning issues and/or mistrust the advice given to them by a council’s professional officers”.
Some have suggested that ongoing education for councillors should be mandatory.
The Working Party considers that local councillors, particularly newly-elected councillors who may have little or no previous experience in planning, should receive appropriate training.
The Local Government and Shires Associations currently provides a Councillor Professional Development Program, which offers 16 workshops, delivered regionally as well as in Sydney (and all of which can be delivered in-house), at various times throughout the year. Two of the workshops deal specifically with the planning system.
The Working Party supports such training initiatives and believes that the quality of decision making can only be improved if more extensive training opportunities are provided. This could be arranged by the Department of Urban Affairs and Planning and the Local Government and Shires Associations.
Recommendation 6: Training of local councillors
Local councillors should continue to be offered training in relation to the planning system and how to discharge their responsibilities within it. More training opportunities should be provided. This could be arranged by the Department of Urban Affairs and Planning and the Local Government and Shires Associations.
4.5 Delegation of the power to determine development applications
Some development industry bodies called for councils to make greater use of delegation in development assessment and have suggested that they should delegate the power to determine development applications to staff more often. It was suggested that greater use of delegation would speed up the assessment process.
The Working Party is aware that many councils routinely authorise planning staff to determine development applications, most commonly where the proposed development complies with all the applicable development controls and council policies and no objections have been received.
Greater use of delegation would save time. Without limiting the type of applications suitable for delegation the Working Party would encourage councils to consider delegating the power to determine development applications for development:
- which complies with all the applicable controls and policies; and
- where no objections have been received, or any objections can be overcome by the imposition of appropriate conditions of consent.
In order to use delegation effectively, councils will need to ensure that clear and up-to-date policies are in place and staff receive appropriate guidance.
Recommendation 7 Delegation to council staff
Councils should consider delegating the power to determine development applications for development:
- which complies with all the applicable controls and policies; and
- where no objections have been received, or any objections can be overcome by the imposition of appropriate conditions of consent.
In order to use delegation effectively, councils will need to ensure that clear and up-to-date policies are in place and staff receive appropriate guidance.
4.6 Modification of consents granted by the Court
Once a development consent has been granted, the applicant may apply to the local council to have the consent modified under section 96 of the Environmental Planning and Assessment Act 1979. So long as the proposed development remains substantially the same, the council may (after meeting any advertising or notification requirements and assessing the application) modify the consent. However, councils do not currently have the power to modify consents granted by the Court.
SomeMany submissions were made suggesting that councils should have the power to determine modification applications relating to consents granted by the Court. The Working Party agrees recommends that section 96 of the Environmental Planning and Assessment Act 1979 should be amended to allow councils to modify development consents granted by the Court. It was said that the legislature was concerned that councils and developers might subvert the consent granted by the Court and, in particular, might adversely affect the interests of third parties (who have no right of appeal and whose concerns were recognised by the Court).
The Working Party has inquired into the matter and has been unable to identify an instance where councils and developers have attempted to subvert the consent granted by the Court to the detriment of third parties. Indeed most councils consent to proposed modifications when an application is brought to the Court but at a cost to the developers and themselves. If Parliament remains remains of the view that third parties’ interests should be protected against the sort of conduct referred to above the remedy, in the opinion of the Working Party, is to give to those third parties who objected to the original development application the right to appeal against the modification. If a developer appeals against a refusal of the council to its application for modification, any third party who had objected should be notified and allowed to be heard in the Court.
In the opinion of the Working Party its recommendation would reduce the work coming to the Court. If, as feared by some, third parties lodge frivolous objections, the Court has a costs remedy.
Recommendation 8: Modification of consents granted by the Court
Section 96 of the Environmental Planning and Assessment Act 1979, and the Environmental Planning and Assessment Regulation 2000, should be amended to give councils the power to modify development consents granted by the Court.
When an application for the modification of a Court-granted consent is submitted, the council (in addition to fulfilling any other notification or advertising requirements) should be required to notify in writing any person who objected to the original development application. Such persons should then be given a reasonable amount of time to lodge an objection to the proposed modification.
When it determines whether to modify the consent, the council should be required to send a notice of determination to any person who objected to the modification and, if it determined to modify the consent, those persons should be able to appeal to the Court against the determination within 28 days of receipt of the notice. Such appeals should only proceed with leave of the Court.
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