The NSW government has flagged a major shake-up of the Independent Planning Commission, including cutting the number of Commissioners and narrowing its jurisdiction.
The reform process will be overseen by former Services, Technology and Administration director general and acting IPC chair Peter Duncan, who is also the former deputy director general of DPC and former Roads and Maritime CEO.
The IPC was established as a consent authority for development in the state but has been the subject to criticism for contentious decisions and botched processes, leading the state government to order a review by the Productivity Commission last October.
The report handed to the government in December, found that an independent decision-making function strengthened the planning system by minimising the risk of corruption or undue political influence.
It said the IPC played an important role in maintaining the integrity of the system and recommended that it should be retained and its independence and governance strengthened.
It recommends establishing the IPC as a separate and independent agency with a more formal role for the chair, who would be accountable to the minister.
Reducing number of Commissioners
However it recommended “transitioning to a smaller pool of Commissioners with a stronger focus on decision making skills rather than technical expertise”.
The IPC currently has 29 commisioners appointed for three year terms. Under the recommendations of the report, this figure would be reduced with consultants providing separate expert advice when required.
The move to reduce the number of commissioners would make decisions faster and more consistent, Mr Stokes said.
The report also recommends the remuneration model should also be reviewed, with consideration of fixed fees or a remuneration cap.
The Productivity Commission notes the IPC has a 13-strong Secretariat which it says is understaffed, lacking in experience and reliant on contractors, and is in the process of being restructured.
“This is clearly not ideal and the IPC’s restructure and recruitment should be addressed as a matter of urgency,” it says.
Increasing threshold of community objections
The report recommends that only the most contentious major projects should be referred to the IPC, that councils should be able to rescind objections after a development has been exhibited and that the threshold of community objections for a matter to be consider should be doubled from 25 to 50 unique objections, excluding councils.
“One position presented to this review is that it is increasingly easy to ‘game’ the system and ‘drum up’ more than 25 objections through automated online systems that generate ‘form letters’ of petitions, or through the circulation of form letters among a special interest’s organisation’s mailing list,” the report says.
It says if the 50 complaints threshold applied in 2018-19 there would have been 11 fewer referrals that year.
It also recommends reverting to a single stage public hearing process.
Planning minister Rob Stokes said the government had accepted all the review’s 12 recommendations.
Councils cautious, developers smiling
LGNSW said it welcomed the decision to retain and improve the IPC saying it provided important checks and balances in the planning system.
However it was important that councils be consulted ahead of determinations to help ensure the conditions of consent are beneficial to the local community that will be impacted by the development, President Linda Scott told Government News.
“These consent conditions must also recognise the need for developers to make a contribution to the community and environment,” she said.
Developers were pleased with the government’s response saying the recommendations would prevent commissioners going on “flights of legal fancy” and being “bulldozed by organised community action groups”.
Urban Taskforce, which had sought a watering-down of IPC powers to overturn government decisions, called for all the recommendations to be immediately implemented.
“The changes will mean that Commissioners will be more focused on planning decisions. They will no longer be able to go on their own flights of legal fancy. Where there is ambiguity in policy, they will be allowed to seek advice from DPIE or the Minister”, CEO Tom Forrest said.
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The IPC like the Commission of Inquiry from 1980-2008 provides an important forum for citizen participation. By the time a Major Project gets to this stage citizens have had the benefit of reading the expert advice provided by relevant government employed experts. They don’t have that during the Major Projects exhibition period. The IPC differs from the COI in that the IPC does not examine government projects. So contentious projects such as Light Rail and Westconnex have not been subject to an IPC. The IPC also allows citizens to give oral presentations at one or two hearings, another measure of ‘inclusion’. The recommendations accepted by Minister Stokes include cutting the hearings from two to one. The former COI had two hearings and an onsite tour as well as the right to submit written questions to anyone providing testimony (including of citizens). Essentially it was recognized that big expensive contentious/contested projects require a level of public scrutiny – ‘outsider’ perspectives and evidence. Citizens engage for a number of reasons: the development will impact them directly or as a consequence of consent will enable another major project which will impact them and/or as ‘citizens’ they are interested in the project because it may adversely impact the environment including threatened species and/or a poorly resourced community. In the case of the former it can be referred to as ecological justice and the latter, environmental justice, though both may apply. Major Projects are of State Significance meaning they should be for the benefit of the whole state. They are big, and expensive, and often underpin other projects eg. Moorebank Intermodal. Very often the message given to those impacted locally is: ‘we are sorry you will be impacted but this is in the ‘public interest’, it is for the greater good. Yet one of the recommendations from the Productivity Commissioner, accepted by Minister Stokes, is to ignore non-local objections. So effectively the impacts can be in the public interest, for the good of all the citizens of the State, but those citizens have no right to object. They have no right to be advocates for the environment or for socially disadvantaged communities. When Minister Stokes spoke to the 2nd reading of the EPAA Amendment he said that public participation was being strengthened. On reading Hansard one would think he considered public participation to be important, however, clearly not. If he is prepared to disenfranchise citizens in the IPC process how long before the same applies for Major Projects assessment in his Department. I would argue that most people who volunteer their time to participate do so because they see shortcomings in the system, they know that there are knowledge and expertise gaps. They can’t rely on paid experts and ‘hired guns’ to present the whole truth and nothing but the truth about a development. Examine any Major Project and read the responses of Government experts in addition to the claims in the EIS. Take a look at the Auditor Generals report on the Light Rail. Look at the state of some of the buildings eg. Mascot, Olympic Park, ‘Green’ Square and so. Do they inspire confidence in our planning system. The Department used to say they consulted because they needed public knowledge, ideas and expertise. They used to say they aspired to robustness, transparency and accountability. I suppose some of those high minded planners have moved on or are keeping their heads down awaiting better days. But of course that’s not the point, this isn’t about respecting process this is about outcomes, starting with a particular outcome in the State’s NW supporting a recent deal. It was so obvious on reading the recommendations on February 1, yet the media are quiet on this and also on Mr Duncan replacing Professor O’Kane as IPC Chair (officially she is on secondment but who thinks she will return). The university academics who teach ‘Planning’ would do better to direct their students to Game of Thrones.