We provided key government, industry and community stakeholders the opportunity to pose questions about the Commission, its role and decision-making processes. Those questions and our responses are published below in full.
How does the Commission consider community views in its decisions?
First, we need to gather community views which we do in various ways.
We have public submissions from the time the Department of Planning, Housing and Infrastructure (DPHI) puts the project on exhibition (and the applicant’s Response to Submissions). That’s one source of community views.
Then after DPHI sends the assessment report to us, we hold a public hearing if instructed to do so by the Minister for Planning or make a decision on whether to hold a public meeting or not. And we call for submissions, particularly asking that they address the issues raised in the assessment report from DPHI including comments on any proposed conditions.
All this material (including the transcript from any public hearing or meeting) is then studied, analysed, organised by theme and considered against relevant legislation, planning instruments and policies. The Commission panel then records its deliberations on all of this in the Statement of Reasons.
We take community views very seriously in undertaking our role as a consent authority for complex and contentious State significant developments (SDD). Under the Environmental Planning and Assessment Act 1979 (EP&A Act) we, like all consent authorities, are required to set out explicitly how we took into account the community’s views – we do this in the panel’s Statement of Reasons.
Who are the Commissioners and what skills do they bring to the Commission?
In line with the section 2.8(3) of the EP&A Act, Commissioners must have a background in one of the following fields: planning, architecture, heritage, environment, urban design, land economics, soil or agricultural science, hydrogeology, mining or petroleum development, traffic and transport, law, engineering, tourism, or government and public administration. One Commissioner is appointed as the chair.
Commissioners are appointed by the Minister and are generally appointed for three-year terms. The maximum total time as a Commissioner is six years. Currently, there are 22 Commissioners. The current chair is Professor Mary O’Kane.
The Review of the Commission carried out by the NSW Productivity Commissioner in 2019 recommended that there be a stronger focus in appointing Commissioners ‘on decision-making skills rather than technical expertise’, noting that ‘expert advice can be commissioned separately’.
The government accepted all recommendations of the Review, so this recommendation has been implemented in the Minister’s appointments of Commissioners and in Commissioner development.
How does the Commission exercise its functions separately from DPHI and the Minister?
Why does the Commission often end up determining particularly controversial projects?
The Commission was set up to deal independently with controversial and difficult cases.
In the NSW planning system, there are several consent authorities. The Commission is the consent authority for State significant development applications where the following apply:
That is, when one or more of these conditions apply, only the Commission can determine the matter. Applications that meet one or more of these conditions tend to be controversial!
What does the Commission do if there doesn’t appear to be enough information provided by DPHI upon which to make a decision, or there is conflicting information being presented by experts in the same field?
It’s DPHI’s responsibility to coordinate the whole-of-government assessment of SSD applications prior to matters coming to the Commission for determination. This responsibility comes from section 4.6(b) of the Environmental Planning and Assessment Act 1979 and the Minister for Planning’s Statement of Expectations. Once an application comes to the Commission, the Commission can:
Ultimately, Commissioners weigh all the relevant evidence before them to make an independent decision, based on legislation and Government policy.
Since the introduction of the Memorandum of Understanding with DPHI, in what circumstances is the Commission able to seek and obtain advice from independent experts about matters on which expert evidence is inconclusive?
The Minister’s Statement of Expectations for the Commission makes it clear that DPHI is responsible for planning assessments and that duplication of this function should be avoided. If the Commission is not satisfied with advice from DPHI or from any experts that DPHI has used in preparing its assessment, the Commission may choose to seek further independent expert advice.
How does the Commission ensure that Commissioners have sufficient background knowledge to adjudicate complex and competing environmental, social and economic arguments about State significant developments?
Although Commissioners have experience and expertise in various specified fields, they do not sit on panels as subject matter experts.
Commissioners work hard to make independent and objective decisions about complex and contentious development applications by checking they have adequate evidence on the matter before them and then weighing that evidence in making a determination. Decisions are made based on legislation and Government policy and are informed by DPHI’s whole-of-government assessment and by submissions and other material provided in the determination process.
How does the Commission ensure that Commissioners have sufficient background knowledge to adjudicate complex and competing environmental, social and economic arguments about State significant developments?
Although Commissioners have experience and expertise in various specified fields, they do not sit on panels as subject matter experts.
Commissioners work hard to make independent and objective decisions about complex and contentious development applications by checking they have adequate evidence on the matter before them and then weighing that evidence in making a determination. Decisions are made based on legislation and Government policy and are informed by DPHI’s whole-of-government assessment and by submissions and other material provided in the determination process.
Does the Commission have a practice of ensuring that decisions about approvals, refusals and conditions made by different Commission panels are consistent across different developments of a similar nature or involving comparable impacts?
SSD applications are determined on their individual merits but based on legislation and Government policy. The Commission seeks to facilitate consistency in the decision-making process through the oversight of panels by the Commission Chair as set out in the Chair Oversight Protocol. It may appear that Commission panels sometimes make inconsistent decisions, but this will generally be due to the site and other case specific considerations that distinguish one application from another.
Don't Commission panels consider previous decisions about similar developments, or court decisions about similar developments as guidance when making determinations?
Decisions of other panels of the Commission or of the Land and Environment Court in Class 1 merits matters are not binding precedents on the Commission or other consent authorities. Panels may however be guided by how relevant decisions of the Court and other panels are reached and often examine the reasoning by which Courts and other panels come to their decisions, even though they do not apply the outcomes of other decisions as binding precedents.
Who reads the submissions made to the Commission panels?
Panels generally aim to read all submissions made on a case personally. Panels also rely on assistance from staff of the Office of the Independent Planning Commission, under the direction of the panel, to ensure that all submissions are read, and their content analysed and summarised for consideration by the panel.
Increasingly, the Commission complements this with automated text analysis of submissions, the results of which are sometimes presented in the panel’s Statement of Reasons in tables and graphics.
Issues, concerns and substantive arguments presented in submissions are reviewed, discussed and weighed up during the panel’s deliberations, and reflected in the Statement of Reasons.
How does the Commission choose which community members to invite to site visits?
The Commission will identify local community or interest groups that have previously made submissions to DPHI during exhibition or otherwise been engaged in the planning process for that development and invite a representative/s to attend the site inspection and locality tour as independent observers.
The attendance of any invited community members to the site visit remains subject to the permission of the landowner, as is set out in the Commission’s Site Inspection and Locality Tour Guidelines.
Why are community representatives on site tours not allowed to ask questions about the development?
The purpose of the site inspection and locality tour is to assist the appointed Commission panel in understanding the physical attributes of the application site and its locality. It is not a forum for community representatives to ask questions or make representations to the panel about the proposed development or its impacts. Community representatives are invited to attend site inspections and locality tours as independent observers to ensure this very important part of the decision-making process is open and transparent. Those community representatives are able to make a submission in writing or present at any public meeting or public hearing held on the matter.
It is important to note that although notes of the site inspection and locality tour are made, full transcription is currently not possible because of ambient noise and moving from location to location. This is another reason why community representatives are not able to ask questions about the development – as the information exchanged may not able to be captured and made available for anyone not at the site inspection to consider and respond to.
Why does the Commission meet separately with applicants, DPHI and local government, but not with local community groups who object to development proposals?
The purpose of the site inspection and locality tour is to assist the appointed Commission panel in understanding the physical attributes of the application site and its locality. It is not a forum for community representatives to ask questions or make representations to the panel about the proposed development or its impacts. Community representatives are invited to attend site inspections and locality tours as independent observers to ensure this very important part of the decision-making process is open and transparent. Those community representatives are able to make a submission in writing or present at any public meeting or public hearing held on the matter.
It is important to note that although notes of the site inspection and locality tour are made, full transcription is currently not possible because of ambient noise and moving from location to location. This is another reason why community representatives are not able to ask questions about the development – as the information exchanged may not able to be captured and made available for anyone not at the site inspection to consider and respond to views in more detail. This is rarely done however as the Commission finds that a public meeting is generally a better forum for the Commission (and all other interested parties) to hear from a local community group and for the Commissioners to ask them questions.
How does the Commission determine the lengths of time that people speak for at public hearings without knowing ahead of time what contribution of information or perspective people requesting to speak have to share?
Anyone wishing to speak at the Commission’s public hearings and meetings is required to complete a registration form which asks them to nominate their interest in the Project and how long they would like to speak (five, 10 or 15 minutes). The Commission uses the information from the registration form to allocate speaking times ahead of the public hearing or meeting. The Chair of the Commission panel may, at his/her discretion, allow a speaker additional time during the public hearing or meeting if the information contained in their presentation is new or particularly detailed and relevant.
With two-member panels, what happens if one Commissioner wants to approve the development but the other wants to refuse consent? How is this resolved?
Such a scenario would currently be dealt with under the ‘Chair Oversight Protocol’. The protocol is publicly available and sets out the role of the Commission Chair (or her nominee) in respect of guiding panels without usurping their decision-making functions.
Given the Commission’s role in imposing conditions of consent, what training and professional development exists to educate Commissioners in the crafting of effective conditions and their likely efficacy?
If a Commission panel is minded to grant development consent subject to conditions, it is imperative that those conditions are workable – that is, that they achieve the desired effect; while not having any unintended consequences for the Project. When drafting conditions, the Commission typically seeks advice from DPHI, the professional staff of the OIPC, and inhouse and external lawyers as to the likely effectiveness and enforceability of those conditions. (Note: correspondence with DPHI on this matter is not published until after the relevant determination is made, so as not to reveal ongoing deliberations of the panel which may still be subject to change.)
Has the Commission or DPHI reviewed the effectiveness or enforceability of consent conditions in mitigating the impacts of various types of developments? … (and) with conditions of consent that purport to mitigate GHGEs from new coal and gas developments?
DPHI reviews the effectiveness and enforceability of consent conditions as a routine part of its compliance and enforcement role. This experience is incorporated in DPHI’s advice to the Commission on proposed consent conditions.
Before finalising its determination, does the Commission consult with DPHI with regard to the determination, conditions of consent or any other relevant matters?
The Commission is specifically a consent authority for SSD and does not have any compliance or enforcement role. Other bodies – principally DPHI – are responsible for enforcement of conditions of consent and the Commission relies on DPHI’s advice in drafting conditions of consent that are workable, enforceable and do not cause unintended consequences. Note: this correspondence with DPHI is not published until after the relevant determination is made, so as not to reveal ongoing deliberations of the panel which may still be subject to change.
How does the Commission determine which are “unique” submissions given many submissions are likely to raise similar issues about the impacts of development?
In determining if a case will come to the Commission or not, DPHI is responsible for determining whether public objections it receives during its exhibition of a development application are ‘unique’ or not. To do this, DPHI applies clause 8A(5) of the State Environmental Planning Policy (State and Regional Development) 2011 which provides that a petition or submissions that contain the same or substantially the same text (e.g. form letters) are to be counted as just one submission.
In the matter of KEPCO Bylong Australia Pty Ltd v Independent Planning Commission, the Commission filed a submitting appearance (save as to costs) in reliance on the Hardiman principle. Clarification is sought around whether it is the Commission’s policy to file a submitting appearance in all judicial review proceedings where it is a party, or if there is some flexibility in this regard (and if so in what circumstances the Commission would take an active role in proceedings)?
The Hardiman principle (from the High Court case of R v Australian Broadcasting Tribunal & Ors; Ex parte Hardiman (1980) 144 CLR 13) provides that a decision-maker (such as the Commission) should only take an active role in judicial review proceedings in exceptional circumstances. These circumstances are generally limited to making submissions regarding the powers and procedures of that decision-maker. The reason behind this is that a decision-maker’s impartiality may be put at risk if it takes a more active role and is then required by the Court to remake the decision as a result of the proceedings.
The Hardiman principle does not require the Commission to file a submitting appearance in all judicial review proceedings. The application of the principle turns on the nature of the issues raised by each applicant for judicial review. The Commission will make decisions on its approach to any future judicial review proceedings on a case by case basis.
In its recent Dendrobium determination, the Commission stated “the Commission considers that it is permitted to take into account the Department’s AR, but that it should be weighed in the same manner as the other Material referred in this Statement of Reasons. To the extent that any policy outside of the EP&A Act purports to require the Commission to give the Department’s AR greater weight than the other Material, the Commission has not applied that policy”. Could the Commission clarify the weight given to DPHI’s assessment report and what “policy outside of the EP&A Act” is being referred to?
The Commission must comply with the Minister’s Statement of Expectations, which requires the Commission to make decisions informed by the Planning Secretary’s assessment. Moreover, the Commission is bound by its Memorandum of Understanding with DPHI which requires the Commission to use DPHI’s Assessment Report as the starting point for its determinations. The Commission is unaware of any policy of the NSW government that limits the Commission’s independence in determining how to weigh the material before it, including the Assessment Report prepared by DPHI.
How does the Commission weigh up the public interest when making a determination for a project?
The public interest is one of the many mandatory matters that the Commission must consider in making a determination. Along with the other mandatory matters (including the suitability of the site, environmental and other impacts and duly made public submissions), the public interest is listed in section 4.15 of the Environmental Planning and Assessment Act as something a panel must consider. The principles of ecologically sustainable development (including the precautionary principle) also fall under the public interest head of consideration.
How the public interest is weighed against other considerations is a matter for panels to explain in their Statements of Reasons. This involves panels determining how relevant the various considerations are to the matter before them. The weighing process is informed by matters including Government policy, submissions made by the public and discretionary value judgments made by panel members (within the scope permitted to them under legislation).
Is the Commission obliged to make a determination consistent with a recommendation of DPHI? Under what circumstances can the Commission make a determination that is inconsistent with a recommendation put forward by DPHI?
The Commission is not obliged to make a determination consistent with DPHI’s recommendation. The Commission’s determination of an SSD application must be informed by DPHI’s whole-of-government assessment, but Commissioners bring independence and objectivity to the decision-making process and are required to weigh all the evidence before them and make their decisions in line with legislation and Government policy, which includes consideration of the public interest as one of the mandatory considerations under section 4.15 of the Environmental Planning and Assessment Act 1979.
The Commission is assisted by public submissions and presentations made at public hearings and meetings in considering all of the mandatory considerations – particularly in considering the public interest.
When the Commission disagrees with the recommendation put forward by DPHI, based on its weighing of the evidence before it, it can make a determination that is inconsistent with DPHI’s recommendation.
If the Commission is proposing to make a determination on a project that is inconsistent with the recommendation from the Department of Planning, Housing and Infrastructure, is there any opportunity for the applicant or the Department of Planning, Housing and Infrastructure to address the concerns of the Commission?
The applicant and DPHI are afforded the opportunity to meet with the Commission’s panel to discuss the application and the findings of DPHI’s whole-of-government assessment, as well as to present at the Commission’s public hearing and meetings. These meetings are also an opportunity for the Commission’s panel to raise concerns or matters for the applicant and/or DPHI to address with amendments or variations to the application or further assessment.
It is also commonplace for the Commission to request additional information from the applicant and/or DPHI in relation to issues of concern prior to making a final decision. During this process, the applicant may choose to seek agreement from the Commission to amend or vary its application in response to concerns raised by the panel and/or other stakeholders.
The Commission is bound to make decisions according to the law and relevant policy. Given that Government policy covers such a wide range of matters and that there is no absolute hierarchy of resolving competing policy aims, it may be the case that a particular policy of the Government is given less or more weight in a panel’s consideration than another policy – the reasoning on this is captured in the Statement of Reasons.
Counsel assisting the Commission is not a special role under legislation or policy. They are a barrister engaged to act for and advise the Commission in the exercise of its functions, instructed by the Commission’s lawyers. How Counsel assisting assists the Commission is a matter for individual panels and the Office of the Independent Planning Commission to determine on a case by case basis – generally counsel will be appointed to assist a panel in particularly large or complex matters.
Are there circumstances where the Commission will undertake its own assessment of projects?
The Minister’s Statement of Expectations for the Commission makes it clear that DPHI is primarily responsible for planning assessments. This does not, however, prevent the Commission from seeking additional expert advice to assist it in determining a development application, as required. But, in the spirit of Statement of Expectations, the Commission would generally request DPHI to carry out any further assessment it requires.
How does the Commission deal with information or submissions that are lodged outside of the formal submission period, e.g. during the public hearing process or before the determination is made? How much weight is given to these submissions? How does the further consideration of any late submissions affect the Commission’s timeframe for making a determination?
The Commission accepts written submissions lodged via email, post or the ‘Have Your Say’ portal on the Commission’s website within a set period, typically up to seven days after a public hearing or meeting. The deadline for written submissions is published on the respective case page on the Commission’s website. Late submissions are only accepted in exceptional circumstances and if they are not accepted, they will not be considered by the panel.
In circumstances where the Commission re-opens public submissions in response to new information received from the applicant, DPHI or another stakeholder, a statement is published on the respective project webpage outlining what new information the Commission is accepting public submissions on and the new deadline for submissions. Although the Commission is committed to timeliness in decision-making, it is important that the process be fair and legally robust.
What is the role of local councils in the assessment of State significant development (SSD) and how is their input facilitated, particularly for smaller councils with limited resources? How does the Commission engage with local councils and their communities?
How the input of councils is facilitated in the assessment of SSD applications is a matter for DPHI, which is responsible for coordinating the whole-of-government planning assessment.
However, the Commission is keen to ensure the participation of councils in its decision-making processes. The Commission routinely meets with councils – both elected representatives and management – to listen to their views on the proposed development. Council representatives are also invited to present at the Commission’s public hearings or meetings. As part of its regular round of consultations with peak stakeholder groups, the Commission meets with the Local Government Association, generally twice a year. These meetings provide an opportunity to discuss issues such as managing challenges associated with small councils.
Yes. The Commission routinely engages with neighbouring councils who may be affected by a proposed SSD application. The Commission will reach out to both elected representatives and management from adjoining councils to invite them to meet with the Commission’s panel to discuss any concerns they might have in relation to the proposed development.
How does the Commission ensure that development approvals for solar farms are appropriately conditioned to address waste and recycling impacts?
This is a matter for the individual Commission panel in accordance with legislation, the NSW Large-Scale Solar Energy Guideline, and Government policy on waste and recycling.
What criteria does the Commission consider when deciding whether to apply local infrastructure contributions when approving SSD?
This is a matter for the individual Commission panel in accordance with Division 7.1 of the Environmental Planning and Assessment Act 1979 and Government policy on local infrastructure contributions. Panels will also consider submissions from relevant local councils and the advice of DPHI as well as all other submissions.
We recognise the importance of community participation in our decision-making process. Using our ‘Make a submission’ form is the easiest way for you to make a submission on cases currently before the Commission.