Developers Can Now Request Reviews Of Rezoning Decisions

03/01/2013 2:41 am

NEW planning process provides developers with the ability to request a review of rezoning decisions.

Adapted From Original Paper By Alicia Conlon, DFP 

As of the 2nd Of November 2012 new review processes have been implemented to the way proponents and councils can seek an independent review of their planning proposals (rezonings). This policy was announced in the Planning Circular PS 12-006 on the 29th October 2012. These changes have been made to “increase transparency” and “provide greater certainty” and will assist in improving a process often viewed as too rigid and at times unfair. This post focuses on the new review processes for planning proposals and what it will mean for developers.

Previously, there has been no ability for a proponent (often being a landowner or developer) to seek a review of a planning proposal after it has been rejected. For this reason two types of reviews have been created allowing proponents to have decisions reconsidered by an independent body.

Pre-Gateway Review

This review process is for developers or landowners who have requested that Council prepare a planning proposal. There are two instances where the proponents are able to ask for a Pre-Gateway Review:

  • The first occurs if the council has notified a proponent that a request to prepare a planning proposal is not supported, the proponent will have 40 days to request an independent review.
  • The second circumstance occurs if the council has failed to indicate its support of the proposal after 90 days, in this case the proponent is able to request a review any time after the 90 days.

A formal application for the review will be submitted to the Department of Planning and Infrastructure (DoPI) for assessment. DoPI will submit the application to the relevant regional planning panel (JRPP or in the case of Sydney City Council the PAC). The initial Department assessment will incur a fee of $5,000 payable to DoPI, while the application to the JRPP or PAC will incur an additional cost of $15,000. These panels will conduct the independent review and provide a recommendation to the Minister as to whether the planning proposal should be submitted for Gateway Determination. The Minister will then decide the plan’s procedure.

Gateway Review

This review will occur following the Gateway Determination. Proponents may seek a review if the Gateway Determination states that:

  • The planning proposal should not proceed;
  • The planning proposal should be resubmitted to the Gateway; or
  • If the determination imposes requirements which the proponent or Council feels are unreasonable (with the exception of community consultation requirements).

In the case of a Gateway Determination that is not to proceed or requires the resubmission of a planning proposal, proponents or Council will have 40 days from being notified to request a review. In the case of a determination that imposes conditions that are viewed as inappropriate the proponent must indicate their intent for a Gateway Review within 14 days of being notified, they then have 40 days to formally apply.

The reviews will be undertaken by the PAC who will provide a recommendation on the original Gateway Determination as to whether it should be altered. The Minister’s final decision will be based on the PAC’s advice, the views of the council and the proponent.

These new review processes are now in effect.

However, if your circumstances do not fall into these categories yet you still wish to seek independent reviews post Gateway determination you may be eligible for Ministerial assessment under Section 54(2)(d) of the EP&A Act. This section provides other legislative mechanisms for planning proposal to be assessed by DoPI in the case of Gateway Determination time frame obligations not being met by Councils.