Key issues that need to be addressed in the NSW Pre-Gateway Review Process

There are four changes proposed for the pre- gateway review process:

• Councils may introduce community participation at an early stage, prior to making a decision on the merits of a spot rezoning or LEP amendment.
• The Department will no longer undertake an initial assessment of the pre-Gateway review application. The requests for review will be automatically referred to the relevant JRPP / PAC within 3 days.
• The JRPP / PAC will apply a revised strategic merit test to the planning proposal, which must be passed to proceed to the Gateway. The revised strategic merit test will now also consider:
  • The time elapsed since the community has been consulted on the zoning of the subject area, and
  • Changed circumstances since the LEP was made.
• Plan-making powers will be delegated from the Minister to the JRPP / PAC.
  • Where there is a recommendation that a proposal should proceed to Gateway, a Council will be invited to accept the role of relevant planning authority (RPA).
  • Councils will have 42 days to accept the RPA role otherwise the relevant JRPP/ PAC will appoint itself as RPA.

We note the assessment and plan making role of the JRPPs will be taken on by the Greater Sydney Commission (GSC), as announced by the Minister today, 8 September 2015.  It is expected that further detail will soon be available.  Urbis will seek to establish additional insight once more information is released.

Expected delays in the process

Presently the average total time from lodgement of a planning proposal with the Department for pre-Gateway review to a recommendation by the JRPP is 5 months. There are some proposals that remain unresolved 24 months after lodgement. The proposed changes have the potential to reduce reporting processes and subsequent delays between the Department and the JRPP / PAC and Council.

However, we understand that under the current structure and resourcing there is limited capacity for the JRPP and PAC secretariats, to meet timely responses, particularly for the assessment of planning proposals which is not subject to statutory time frames.  Urbis understands the recently announced role of the GSC may alleviate this but there is yet to be any detail provided on the legislative role of the GSC, relationship with the JRPPs and the resourcing options.

There are also recognised delays once a decision has been made to refer an item to the gateway. Inviting Councils to be an RPA and providing 42 days for a reply when the council has clearly previously rejected the planning proposal will no doubt further these delays.

Urbis believes that the process will only improve if there is a commitment to:

• Adequate resourcing of the JRRP/PAC and/or GSC secretariats and committees
• Timely assessment and decision making
• Removal of the 42 day step inviting the Council to be the RPA
• Require the JRPP/PAC or GSC to be the RPA
• Legislate for the GSA to be the RPA

We seek further clarity on these commitments and suggest that timely assessment of planning proposals should be a key performance indicator for the JRPP/PAC or the new GSC.

Need for more information to support Strategic Merit tests

The strategic merit test requires consistency with relevant Regional, Sub regional and local strategies. The Minister is yet to provide updated Sub regional strategies and as a result there may be delays in assessing pre-Gateway reviews until these are finalised. Additionally, there is no reference given to consideration of any changes made (e.g. demographic shift over time) since a local strategy was made.

A new element of the revised strategic merit test is the consideration of the time elapsed since the community has been consulted on the LEP.

Urbis supports the addition to the test. However, there is no clarity on what is considered as ‘recent’ consultation and the weighting given to consultation for standard LEPs, given that some of those may have been in place for over five years.

We therefore urge the Minister to:

• Release the Sub regional strategies for review prior to amending the Pre-Gateway process
• Amend the strategic merit test to include consideration of evidence of any changes that may affect assumptions that are incorporated in an existing local strategy.
• Clarify what is considered “recent consultation” and the weighting given to consultation for standard LEPs that are more than five years old.

Early consultation will create a complex addition to the process

The proposal to enable a Council to undertake early community consultation under specified circumstances may result in a planning proposal being rejected by the community prior to all information, such as technical assessments, being available for review. There is no clear indication as to what the ‘specified circumstances’ are. This step in the system will add delays, costs and complexity to the process. The timing of the existing consultation process allows for the community to be better informed about the proposal and its implications and should be retained as the only consultation.

It is therefore essential that the Minister identifies what the ‘specified circumstances’ are in making early community consultation. Once clarified, we can further consider the implications of those circumstances.

Any request currently being processed or those proposals submitted prior to the review being finalised will continue to follow the existing pre-Gateway review process. When the changes to the process are implemented, existing requests will have an opportunity to transition to the new process.

Urbis can assist you through the process and any changes that may arise.

The proposed changes can be viewed here and are available for comment until 14 October 2015.

For more information or to discuss your planning application requirements, please contact Urbis Director Peter Strudwick or Associate Director Sarah Horsfield.