The Draft Planning Bill 2017 – Focus on Community Engagement
At the beginning of this year, the New South Wales government released the public consultation draft of the Environmental Planning and Assessment Amendment Bill 2017 (the draft Planning Bill 2017). This followed a period of renewed stakeholder engagement last year about potential reforms to the planning system. The draft Bill aims to build on areas of agreement from the ill-fated Planning Bill of 2013.
A key focus of the latest reforms is improving community participation in the planning process. In the documents accompanying the draft Bill, the then Minster for Planning, Rob Stokes, states that the updates “aim to build greater confidence in the planning system by enhancing community participation”. The draft Bill proposes to achieve this aim in six main ways. We explore each proposal in depth below from the perspective of what it means for local councils.
1. Community participation plans
Under the draft Bill local councils will need to prepare a “community participation plan”. The plan will set out how and when the council will undertake community participation in relation to the exercise of its planning functions. Planning functions are defined under the draft Bill and include (amongst other things) strategic plan making and development consent decisions.
There will be “mandatory participation requirements” for the plan which are set out in the draft Bill. This includes:
/ the public exhibition period of the plan itself will be 28 days
/ the public exhibition period for local development applications will be 14 days
/ the Christmas and New Years holiday period (between 20 December and 10 January (inclusive) will be expressly excluded from the exhibition period for any public consultation
/ notification requirements for the determination of a development consent will include the giving of reasons for the decision and how the community views were taken into account in making the decision.
Local councils will also be able to include their own “mandatory participation requirements” in the plan as well as other discretionary provisions tailored to suit local communities. Once made, a plan will only be able to be challenged within three months of its publication giving some community oversight to the process.
Regulations (which are not yet available for public comment) may specify the form, content and procedures for making and publishing the community participation plan. The regulations may also specify:
/ additional “mandatory participation requirements”
/ the method of public exhibition
/ how people can make submissions and obtain further information
/ the requirements for something to be considered a submission
/ the circumstances in which re-exhibition is required (noting that re-exhibition is not required if the environmental impact of the development has been reduced or not increased)
/ that applicants for consents or other approvals must undertake community consultation
To reduce duplication, local councils will not need to prepare a separate plan if it can meet the requirements through the broader community engagement strategy it has prepared under section 402 of the Local Government Act 1993. This last proposal is welcomed as the role of this community engagement strategy is likely to be elevated as changes to the Local Government Act 1993 come into force (see our earlier article about trends in community engagement).
In our view it would also be beneficial for local councils to focus on the creation of a single community engagement strategy which addresses the requirements under the draft Bill, as well as its existing requirements. The last thing that we all want to see is the community suffering consultation fatigue due to another round of consultations from a council silo.
2. Community participation principles
In preparing the plan, local councils will need to consider the prescribed “community participation principles”. These principles are set out in the draft Bill and are based upon the community participation charter that was proposed in 2013.
These principles cover community participation in the strategic plan making process as well as before lodgement of an application for major development. The principles encourage open and transparent decision making and the provision of reasons for decisions. The principles also require that the method of community participation and reasons for planning decisions should take into account the significance and likely impact of the proposed development.
Whilst we support the proposal to embed community participation principles within the legislation, we believe that greater emphasis needs to be given to resolving issues and disputes in the planning process. Sound community engagement processes and practices are essential to drive good decision making but there is also a need to upskill planning professionals in conflict resolution. Otherwise there is a risk that lip service will be given to the principles rather than genuine participation by the community in the decision making process. Nor would we want to see these principles as another series of “tick the box” items that are used to justify outcomes, rather than promoting genuine participation and resolution of issues during the planning process.
3. Reasons for decisions
Under the draft Bill local councils will be required to provide reasons for their planning decisions. The reasons must have regard to any statutory requirements applying to the decision. For example, section 79C considerations in the determination of a development application. Local councils will also need to provide an explanation as to how the community views were taken into account in making the decision.
The material exhibited with the draft Bill states that the “statement of reasons should be proportionate to the scale and impact of [the] decision” (which reflects the proposed community participation principles) and that “it should highlight considerations…that are particularly important to the decision”. It also notes that guidance material will be developed by the Department to help local councils and other decision makers to comply with this requirement in the future.
In a practical sense, the obligation to provide reasons and explain how the community views were taken into account will require councils to re-think and re-draft assessment reports and determinations. Councils will also need to be mindful of providing the information in plain language and in a manner the can be easily understood (again, this will be enshrined in the new principles). This is a skill and task not to be underestimated and one which may prove difficult in practical implementation, which may in turn leave local councils open to further legal challenge in their decision making.
4. Consultation for major projects
For State significant development, applicants will need to demonstrate how they have consulted with the community before lodgement of an application. This will become a requirement of the environmental impact assessment. Whilst agreed in principle, having meaningful consultation at this stage is often difficult and avoided. The detail for this requirement and how it is implemented and policed will be most interesting.
5. Engagement tools
Together with the proposed changes in the draft Bill, the Department is looking at ways to improve the tools available to local councils to increase their engagement capacity. Further guidance material, online tools and case studies will be created to promote innovative ways to engage with the community.
More guidance and assistance should always be welcomed, and it is hoped that some practical suggestions will be made beyond some of the expensive online and impersonal consultation techniques that seem to becoming more frequent in use. We may be old fashioned in this view, but we find that speaking with regional communities face to face is a great way to spread knowledge and break down the barriers that have been built up between communities and planners.
6. Early engagement with neighbours
As noted above, regulations may be made under the draft Bill to encourage or require applicants to undertake consultation before lodging a development application. One area this may apply is local development – that is development determined by local councils. An option is to require consultation with neighbours before lodgement of a development application.
The documents accompanying the draft Bill note that before making such a regulation the Department intends to carry out further research and conduct a pilot with selected local councils. This includes looking at incentives (such as reduced fees) where an applicant can show issues have been resolved through early consultation.
Rather than placing the onus on ‘mums and dads’ to resolve issues at a neighbourhood level and inevitably causing conflict within the street, we believe that planners should be up-skilled and trained in dispute resolution methods such a mediation. Alternatively local councils may look at providing a free mediation service to communities where issues can be discussed and resolved between neighbours with the assistance of an independent and appropriately trained mediator. In an earlier article we share our views about mediation can be used in local government.
For more information about our community engagement services, please contact:
For more information about current reforms in the local government sector, please contact:
Director – Legal, Governance and Mediation
T 0421 180 881
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