Statement of Reasons for Planning Decisions

by | Jun 1, 2017

We have written previously about the proposed changes to community participation in the NSW planning system under the Environmental Planning and Assessment Amendment Bill 2017 (the draft Planning Bill 2017). In this article we explore in more detail the proposal to require local councils to prepare a statement of reasons for development consent decisions (including any decision to modify a consent). We look at the theory behind giving reasons and what this will mean for local councils from a practical perspective. We also share our tips on preparing a statement of reasons.

What is the theory behind giving reasons?

The giving of reasons in an administrative decision making context is considered one of the basic principles of good administration. The NSW Ombudsman Factsheet (Reasons for Decisions) gives an overview of the purpose of giving reasons and outlines best practice for doing so.

One of the main aims of giving reasons is to enable the person affected by the decision (such as an applicant or an objector) to understand why and how the decision was made and what factors were taken into account. In other words, the person can understand why a particular path was taken as opposed to another (e.g. in context of planning decisions, why a development application was refused rather than approved).

Overall, in theory, the new requirement for the giving of reasons should build confidence in planning decisions and the planning system. This is because the giving of reasons should:

/   create transparency in the decision making process;

/   increase the accountability of the decision makers; and

/   improve the quality of decisions.

In the context of the planning system, this means that applicants or objectors should have a better understanding of how and why a decision was made (e.g. why a development application was approved even though many objections were lodged against it), and how their opinions or views were taken into account in making the decision (e.g. in granting approval conditions were imposed to mitigate the impacts caused by the development).

What will be required in a “Statement of Reasons”?

If the legislation is passed, there will be specific requirements for the “statement of reasons”. Local councils will need to give public notice of:

/   The decision;

/   The date of the decision;

/   The reasons for the decision (having regard to any statutory requirements applying to the decision); and

/   How community views were taken into account in making the decisions

The Department of Planning website has provided additional information about the how the statement will work in practice. It is the Department’s intention for the statement to be proportionate to the scale and complexity of the proposal. This reflects the proposed “community participation principles” in the draft Planning Bill 2017. The Department’s website states:

The reasons will be able to draw on the assessment report, and need not be too long. For example, in the approval of a simple Development Application, the Statement of Reasons may simply note that the proposal complies with the controls and no objections to it were raised.

This is clearly the simplest of examples. The statement will need to be more detailed if the development application does not comply with the planning controls or objections have been raised about the proposal. Other factors which may influence the detail and length of the statement may include:

/   whether the assessment has taken a long time;

/   whether expert advice has been obtained about particular issues; and

/   whether there are a number of key facts to be weighed up in making the decision.

WIth this in mind, a one size fits all approach will not work.  The statement will need to be tailored to each decision and. Councils will need to be wary of over reliance on templates or precedents.

What is the difference between a Statement of Reasons and “Notice of Determination”?

Under the existing planning legislation, local councils are already obliged to produce a “notice of determination” when a development application is determined (i.e. approved or refused). This notice is given to the applicant and must meet the specific requirements of clause 100 of the Environmental Planning and Assessment Regulation 2000. This includes detailing the reasons for the refusal (if the application is refused) or reasons for imposing conditions (if the application is approved subject to conditions).

So the question arises  – why will councils also be required to publish a “statement of reasons” for each development decision? In our view, there are three reasons:

/   A notice of determination only goes part of the way in explaining why a certain decision was made. The assessment report usually includes a detailed explanation of the decision, and a statement of reasons will fall somewhere in between the two.

/   The statement of reasons is aimed at a wider audience – that is, not only the applicant but any members of the public who have an interest in the decision and want an explanation as to why it was made.

/   There will also be a difference in how the statement of reasons is communicated. The Department of Planning has indicated that, at present, local councils will have discretion as to where to publish the statement of reasons (i.e. on website or newspaper). This is different to a notice of determination which must be sent to the applicant of the development application. Down the track, the Department of Planning has indicated that the reasons will be notified online through the NSW Planning Portal.

What happens when planning decisions are politicised?

Understandably, a concern amongst local council development planners is what is going to happen when an officer recommends refusal of a development application, but this is then approved by the elected Council without any clear planning justification or where the application is contrary to the planning controls. We all know that from time to time this happens and such is the nature of the political system of local government.

Who is going to write the statement of reasons? What will they say? What will be the legal implications of any challenge to the validity of the development consent?

This leads back to one of the aims of giving reasons for decisions – that decision makers are made more accountable for their decisions.  This applies equally to development planners and elected officials.

What are our tips for preparing a statement of reasons?

So that is the theory and the proposed changes – what will development planners actually need to do in practice to prepare for the change? Some practical tips for preparing a statement of reasons in the context of development decisions include:

/   Think about the audience (i.e. the person who will be reading the statement of reasons)

/   Write in plain English – that means no planning or technical jargon

/   Use short sentences and clear language

/   Avoid abbreviations

/   Address the key issues in the decision

/   Identify any key facts upon which the decision was based

/   Identify the statutory requirements applying to the decision (e.g.: section 79C) (but avoid quoting legislation or planning controls)

/   Tailor to the scale and complexity of the application and assessment process

/   For complex decisions, include a list of key steps in the process and the documents and information considered in making the decision

Where to from here?

The public exhibition period for the draft Planning Bill 2017 has closed and the New South Wales government is currently considering submissions on the draft legislation. It is expected that the legislative amendments will be introduced into the Spring parliamentary session.

The Department of Planning has indicated that it will develop guidance material and templates to help consent authorities, such as local councils, design their statements of decisions. In the meantime, if you are interested in reading more, then the NSW Ombudsman has published the Good Conduct and Administrative – Guidelines for state and local government (2nd edition) May 2006. The Western Australian Ombudsman has also published Guidelines:  Giving reasons for decisions.

If you are interested in finding out more about this issue, please get in contact with Emma or Steve:

Emma Broomfield 

Director – Legal, Governance and Mediation

T     0421 180 881

E     emma@localeconsulting.com.au

Steve Thompson 

Director – Planning and Strategy

T     0419 700 401

E     steve@localeconsulting.com.au

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Disclaimer: This publication is provided in good faith and is for general information purposes only. This publication does not constitute legal advice or other professonial advice, and must not be relied upon. You should seek legal or other professional advice in relation to matters arising out of the publication having regard to your circumstances and needs. No warranty or representation regarding the reliability, quality or accuracy of any information in this publication is given by Locale Consulting or the authors of the publication.