DRAFT NSW BETTER PLACES BILL
1 What are the objectives of this act?
1.1 To manage development that facilitates the creation of excellent and sustainable places where the controls fit the objectives for the place
1.2 To manage development using an administrative system that is efficient and transparent
1.3 To ensure development assessment decisions are made fairly
1.4 To make the development consent process more predictable
1.5 To move the development assessment system from paper-based to digital to improve access and simplicity.
2 How is development control imposed?
2.1 All development requires consent – except those specific classes of developments that have been exempted from the definition of development.
2.2 Consent is assumed where a registered certifier has certified that a development of a class of development defined by regulation has been certified as complying with the quantitative policies and the development is judged to comply with the terms of the relevant DFC. (The issue of certification needs to be considered as a policy question for government.)
3 By what criteria will the decision be taken?
3.1 The consent authority will apply only the Assessment Policies contained in the digital cadastral record for the parcel on which the development is located
3.2 Where are the assessment policies recorded?
Assessment policies are to be found in the official digital cadastral record of the State’s land parcels
3.3 What do the assessment policies consist of?
A qualititive statement of Desired Future Character (DFC) for each parcel (or the place within which the parcel is located), the quantitative assessment policies that support the achievement of the DFC and any technical codes incorporated in those policies
4 Who can initiate the process for making the assessment policies?
4.1 The following may initiate the process for making or amending the assessment policies:
4.1.1 The Minister or any statutory body or agency appointed by regulation by the Minister
4.1.2 The relevant council
4.1.3 The landowner or person nominated by the landowner
4.2 What is the process for making the assessment policies?
4.2.1 Using the same procedure as that used to lodge an application for development consent, proposed assessment policy should be reported by the council and, once cleared by the Minister, should be noted in the digital cadastral data base as a draft amendment
4.2.2 The amendment application should be accompanied by any relevant strategic planning outputs by the relevant council, the State or other levels of government, reports prepared for or on behalf of the applicant, including, where appropriate, a Statement of Environmental Effects and any other information requested by government
4.2.3 The applicant must also present the results of the community consultation on the draft assessment policy (there will need to be a code to define how this is to be done)
4.2.4 The application will be assessed by the body designated by the Minister by regulation. This may include, but is not exclusively, the relevant local council
4.2.5 The application and the assessment will be presented to the Better Places Panel which will conduct a hearing to consider whether the community consultation was adequate given the nature of the proposed assessment policy, whether the change is justified given the strategic planning outputs for the area and place and other relevant information, including comments from the community
4.2.6 The assessment of the Panel will be provided in a report and recommendations to the Minister who may approve the recommendations, refer the matter back to the Panel and applicant with comments, or refuse the application. Only the Minister is able to make a place assessment policy (DFC plus quantitative policies)
4.2.7 Regardless of by whom the new assessment policy is initiated, the new or amended policy will become the policy, (so that users do not have to work out for themselves how the amendment might change the meaning of any existing policy)
4.3 How is the new place assessment policy made?
The Minister makes a new assessment policy by inserting the amending words into the cadastral data base
5 How is development consent obtained?
5.1 Development consent is obtained by the landowner or a person nominated by the landowner lodging an application and supporting documents with the council in whose jurisdiction the relevant land is situated
5.2 Who makes the decision on whether consent will be granted?
The Minister, by regulation, will determine whether the council, a hearing body or the Minister or some other Minister or statutory body will determine classes of development
5.3 What is the process for assessing an application for development consent?
5.3.1 The relevant council shall be the assessment body unless the Minister has made a regulation directing that a class or classes of applications should be assessed by some other government agency
5.3.2 The council shall be responsible for providing the public access to information and managing supervising but not conducting the community consultation which shall be carried out by the proponent[1] .
5.3.3 Once an application has been assessed by council officers or an appointed independent consultant, the results of that assessment shall be exhibited or notified and the application and the assessment shall be decided by council or referred to the Planning Panel, unless the Minister has made a regulation requiring applications of certain classes to be referred to the State hearing panel
5.3.4 When the Planning Panel has conducted its hearing, a report on the application and the hearing, together with recommendations, will be prepared and made public for seven days prior to a decision’s being made
5.4 Who makes the decision?
The relevant council, or the Panel if delegated by the council unless the Minister has, by regulation, transferred the responsibility to the himself or some other Minister or statutory authority / panel
6 Who can appeals and what can be appealed?
6.1 Who can appeal on the merits of any decision?
Any person may appeal the merits of a decision to give a consent, (or to amend the place assessment policies?)
6.2 How are merit appeals to be conducted?
6.2.1 Merit appeals should be conducted using inquisitorial rather than adversarial proceedings, except for proceedings where the Court has identified a question of law to be resolved or where the application of the exercise of the Court’s enforcement or injunction powers is sought
6.2.2 Minor appeals should be the subject of a triage system, applied by the Court, which should identify those appeals which might be adjudicated more quickly through written submissions rather than a hearing
6.3 Who has standing?
Any person, (other than a litigant in a merit appeal which has commenced or been completed), has standing to take action against a breach of the Act
6.4 Can the Court award costs or damages?
The court can award cost and/or damages if it considers the unsuccessful appeal was motivated primarily with the intention of delaying or frustrating the implementation of the development and where, after having regard to the findings of any assessment or hearing panel, the appeal had little merit
7 What role is played by regulations?
7.1 Regulations will determine all procedural provisions
7.2 What role will Parliament play in the making of regulations?
All regulations will be referred to a specialist joint committee of both Houses for review and report prior to their being laid in the House
(The joint committee will also produce an annual report on the operation of the Act)
8 How will the Act be enforced?
8.1 A suite of offences, orders and entry provisions will be included cf. Local Government Act 1993. The general right of standing available under the EP&A Act will be preserved.