Most people reading this page will be dealing with some kind of development application that they support or don’t support. Hopefully this page will help you.
Objections
First of all, don’t send your objection to a councillor thinking they will be able to listen and get the application rejected at a council meeting. That’s because councillors no longer have a decision-making role on development approvals (which in my view undermines local democracy).
If you have an objection, send it to council staff. Council will then normally contact you about it.
If the development is contentious, then the Council staff will refer their report and recommendation on the DA to the “Local Planning Panel” for Canada Bay. If the development is not seen as contentious, Council staff will determine the outcome. However, the following matters require referral to the Canada Bay Independent Hearing and Assessment Panel:-
- DAs relating to development previously determined by the Panel
- DAs where the owner or applicant is the Council or a Councillor, a member of a Councillor’s family, a member of Council staff who is involved in exercising Council’s functions under the Act, or a State or Federal Member of Parliament, a relative within the meaning of the Local Government Act 1993 of any such person/s. DAs for minor works such as internal alterations and additions to retail/office premises, advertising signage etc are excluded from this requirement.
- DAs that receive 10 or more unique objections from 10 or more different households. It’s not unique if ten people send in an objection letter identical to everyone else’s. [Your objection has to be recognisably different.]
- DAs seeking to depart by more than 10% from the development standards contained within the relevant Local Environmental Plan, but not where the Secretary of the Department of Planning and Environment has given concurrence to the contravention of the development standards or where the concurrence has been assumed.
- DAs associated with sensitive developments such as designated developments, residential flat buildings assessed under State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development, demolition of heritage items, licensed places of public entertainment (eg., clubs, hotels etc), sex services premises or restricted premises, and DAs accompanied by a Voluntary Planning Agreement under Section 93F of the Act.
- Modifications of existing development consents under Section 96 and Reviews of Determinations under Section 82A of the Act that meet the abovementioned criteria. Note: Any Section 82A Review of a Determination arising from an application previously determined by the Panel shall be determined by different members of the Panel to those who made the original decision.
- All Planning Proposals are required to be referred to the Panel for advice.
- Council can elect to refer any other planning or development matter that is required to be determined by the Council to the Panel for advice.
More information on government policy for planning panels.
You can also call Council’s Strategic Planning team on 9911 6555.
Dealing with the panel
Unlike the DAs previously determined by councillors in open meetings, the Planning Panel’s meetings are mostly closed to the public, although they must publish the reasons for their decisions. However, can still have the opportunity to address the panel at its meeting, for which you will need to register in advance.
What to say
When you make your case, you probably have the view that you are facing an unfair situation, and that you are asking for changes based on the merit of your arguments. This may well be true. Unfortunately however, this in itself will not help you. The rules have been written without regard for fairness or merit. The situation may well be unfair, and the options may be in nobody’s best interests. However, the only way to successfully challenge a development is to show that it conflicts with the government’s rules – that is all the panel is allowed to base its decision on. You will need to find help from somebody with knowledge of the system.
Having said that, you may have an opportunity to win minor concessions, but that requires some luck. Even if you feel badly treated, make sure that you speak quietly and respectfully – anger will damage your chances of an improved outcome, making things worse.
Other processes
Decisions for larger projects (over $30 million – note that this was set in 2018 and is not CPI indexed) are not made by Council staff or the “Local” Planning Panel. At the time of this document revision the fate of the Eastern Planning Panel (our regional planning panel for large projects) is uncertain. However, the public information about any new development should give details of how to object and provide a deadline – sometimes unreasonably short.
Getting advice
If you have a friend or contact with planning experience, that is really useful, even just for general advice. You may also be able to make use of the Council’s “Duty planner” phone service – see https://www.canadabay.nsw.gov.au/development/development-applications/duty-planner
If you think that you have a reasonable case to request Council to be more flexible in its approach to a planning matter, you can ask for a meeting with Council’s Director of Planning – see https://www.canadabay.nsw.gov.au/council/about-council/our-leadership-team – however, be prepared for Council to have a different view.
How the NSW government has changed the rules
The NSW Government’s new legislation excludes councillors from making decisions on DAs. The excuse is to stop corruption. The “solution” is to remove the democratic influence of councils, with the NSW government grabbing control and planning laws made even more developer-friendly than before.
Up until now, DAs which were controversial were passed from council staff to the councillors. The decisions were made in an open council meeting, where people for or against a development had the chance to speak. But now, because of new NSW state government law, our councillors have no role in these decisions. Instead, they are made by Local Planning Panels – all across Sydney and Wollongong. It’s not really local, because the panel makes decisions following rules set by the NSW government. It has four people, three of of whom are chosen from a state government list of approved experts. Council gets to nominate a local representative.
In most cases, the outcome would be the same. But in some cases it would be different, because elected councillors are concerned not just about following planning rules, but representing the community’s best interest. For that, they are accountable to the community, and can be later voted out of office if enough people disagree with them.
This is another example of the NSW state government taking power away from democratically elected local councils, and imposing their own rules. Of course: if somebody appeals to the Land and Environment Court against any of their decisions, the council (who had no say in the decision) has to foot the legal bill.
Who asked for this backward step? The real estate industry, especially large developers. The state government effectively controls the “Local” Planning Panels.
If you are concerned about this, learn about what the state government has done and continues to do about planning laws. Yes, I know it’s complicated. That’s why they have gotten away with this – up until now.
I hope this helps explain the current situation.
Councillor Charles Jago
Canada Bay Council