The Independent Planning Commission of NSW was established as a standalone agency under Part 2, Division 2.3 of the Environmental Planning and Assessment Act 1979 on 1 March 2018.
The Commission operates independently of other government departments, including the NSW Department of Planning, Industry and Environment, and has an important role to play in building community confidence in the decision-making processes for major development and land-use planning state-wide.
The key functions of the Commission are to:
Members of the Commission are appointed by the Minister for Planning and Public Spaces based on their qualifications and considerable expertise in a diverse range of planning-related fields. One member is appointed as the Chairperson of the Commission. Members are individually appointed for terms of up to three years and cannot serve more than six years in total.
The Commission is not subject to direction or control of the Minister for Planning and Public Spaces or any government agency, except in relation to procedural matters as set out under the Environmental Planning and Assessment Act 1979.
The Office of the Independent Planning Commission (OIPC) provides professional and technical support to the Commission and its members. The OIPC is the main point of contact for the public and Government agencies. It coordinates and facilitates the Commission’s decision-making processes and aims to provide efficient, transparent and high-performing support services.
The Commission’s Strategic Plan sets out its role, functions, values, and performance measures. It guides the Commission as it seeks to undertake its functions and role in such a way that builds certainty and confidence in the decisions it makes. Read our Strategic Plan here.
On 14 May 2020, the Minister published his Statement of Expectations (SoE) for the Commission. The document describes the Minister's expectations in relation to the purpose, functions and roles of the Commission, as well as key governance and performance objectives to improve the effectiveness of the Commission in determining contentious State significant development applications and providing independent expert advice, when required. Included in the Minister’s SoE are KPIs in respect of timeframes for decision-making by the Commission. Under a separate agreement with the Minister the period from 20 December to 26 January has been excluded from all determination timeframes. This is because many people who may wish to participate in the Commission’s decision-making processes take leave during this school holiday period and could be upset if they miss the opportunity to present at a public meeting or hearing.
Both the Planning and Assessments Group within the Department of Planning, Industry and Environment and the Commission undertake functions that implement the Environmental Planning and Assessment Act 1979. A new Memorandum of Understanding (MoU) between the Department and Commission has been signed to clarify how the two agencies will work together when required under the Act to interact, in order to exercise their responsibilities with an emphasis on quality, probity, timeliness and transparency. This MoU is subject to the responsibilities of the Department and the Commission under the Act and any other NSW legislation. The MoU is available here.
To provide high quality determinations and advice that meet the objects of the Environmental Planning and Assessment Act 1979, build and maintain trust in the NSW planning system, and deliver on the following objectives:
The Commission’s values are reflected in the way its members and staff act and carry out their duties.
The State’s planning laws clearly identify which State significant development applications are to be determined by the Independent Planning Commission and which are delegated to the Department of Planning, Industry and Environment to determine.
The Independent Planning Commission is the consent authority for State significant development applications in circumstances where:
* There are 50 or more unique public objections to the SSD application; and/or
* The Applicant has made a reportable political donations disclosure; and/or
* The local Council has objected to the SSD application and has not rescinded that objection following exhibition.
In circumstances where a Council has rescinded its objection following exhibition of the application – and Council’s objection was the only reason for the Commission to be the consent authority – the SSD application would be delegated back to the Department of Planning, Industry & Environment (the Department) for determination.
The Commission will also continue to be the consent authority for modification applications in circumstances where the applicant has made a reportable political donations disclosure. All other modification applications will be delegated to the Department for determination.
The Commission will independently determine each application on its individual merits and in accordance with legislation and current government policy.
The Commission has the following detailed statutory functions:
The functions of the consent authority under Part 4 of the Environmental Planning and Assessment Act 1979 for State significant or other specified development.
To advise the Minister for Planning and Public Spaces or the Planning Secretary on any matter on which the Minister or the Secretary requests advice from the Commission.
To hold a public hearing into any matter into which the Minister for Planning and Public Spaces requests the Commission to hold a public hearing.
Any function of a Sydney district or regional planning panel or a local planning panel in respect of a particular matter that the Minister for Planning and Public Spaces requests the Commission to exercise (to the exclusion of the panel), or if a Sydney district or regional planning panel has not been appointed for any part of the State, any function that would be conferred on such a panel if it had been appointed.
Any functions under the Environmental Planning and Assessment Act 1979 that are delegated to the Commission, and any other function conferred or imposed on it under that or any other Act.
The following questions were posed by government, industry and community stakeholders.
First, we need to gather community views which we do in various ways.
We have the submissions from the time DPIE put the project on exhibition (and the applicant’s Response to Submissions). That’s one source of community views.
Then after DPIE sends the assessment report to us, we hold a public hearing if instructed to do so by the Minister 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 DPIE including comments on any proposed conditions. Out of all this we have the transcript from a public meeting or hearing and the submissions to provide us with more community views.
All this material is then studied, analysed, organised by theme and considered against relevant legislation, policy and planning instruments. The Commission Panel then records its deliberations on all of this in the Statement of Reasons.
Note we take community views very seriously as we undertake our role as a consent authority for complex and contentious state significant developments. Under the Environmental Planning and Assessment Act 1979 we, like all consent authorities, are required to set out explicitly how we took into account the community’s views – we do this as part of the determination processes in the Panel’s Statement of Reasons.
In line with the section 2.8(3) of the Environmental Planning and Assessment Act 1979 Commissioners who are appointed must have a background in one of the following fields: planning, architecture, heritage, the environment, urban design, land economics, soil or agricultural science, hydro-geology, mining or petroleum development, traffic and transport, law, engineering, tourism or government and public administration. One Commissioner is appointed Chair. Commissioners are appointed by the Minister for Planning and Public Spaces and are generally appointed for three-year terms. The maximum total time as a Commissioner is six years. At the moment there are 18 Commissioners. Their details are on the website at www.ipcn.nsw.gov.au/commissioners The current Chair of the Commission is Professor Mary O’Kane AC.
The Review of the Commission carried out by the 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.
In the NSW planning system, there are several consent authorities. The IPC 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 IPC can determine the matter.
In accordance with the section 2.7(2) of the Environmental Planning and Assessment Act 1979, (which notes that the Commission is not subject to the direction or control of the Minister except in relation to the procedure of the Commission and any directions authorised under the Act), the Commission carries out its work of determining the application independently of the Minister and DPIE. This includes:
Note that, on behalf of the Commission, DPIE does the preliminary work on projects (exhibiting the projects, calling for submissions, commissioning expert reports, and bringing all this together in an assessment report for the Commission to inform its work determining the project). Once an assessment report is ready, the project is referred to the Commission. This independence of the IPC is maintained and signalled in various ways:
The IPC was set up to deal independently with controversial and difficult cases.
In the NSW planning system, there are several consent authorities. The IPC 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 IPC can determine the matter. Projects that meet one or more of these conditions tend to be controversial!
It’s DPIE’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 to the Commission. Once an application comes to the Commission, the Commission can:
Ultimately, Commissioners weigh all the relevant evidence before them to make an independent decision, in line with legislation and Government policy.
The Minister’s Statement of Expectations for the Commission makes it clear that DPIE is responsible for planning assessments and that duplication of this function should be avoided. If the Commission is not satisfied with advice from DPIE or from any experts that DPIE has used in preparing its assessment, the Commission may choose to seek further independent expert advice.
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 in line with legislation and Government policy and are informed by DPIE’s whole-of-government assessment and by submissions and other material provided in the determination process.
SSD applications are determined on their individual merits but in line with legislation and Government policy. The Commission seeks to facilitate consistency in the decision-making process through the oversight of Panels by the Commission Chair (or her delegate) 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 project specific considerations that distinguish one application from another.
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.
Panels generally aim to read all submissions made on a project 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.
The Commission will identify local community or interest groups that have previously made submissions to DPIE 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.
The purpose of the site inspection and locality tour is to assist the appointed Commission Panel in understanding the physical attributes of the project 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.
The meetings with proponents, DPIE and local government are held early in an IPC Panel determination process and are helpful for the Panel’s understanding of exactly what the proponent is trying to achieve.
Community groups are afforded an opportunity to present their views on development proposals at the Commission’s public hearings and meetings. However, a Commission Panel may, at its discretion, choose to a hold a separate meeting with a local community group/s to discuss its 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.
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.
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.
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 DPIE, the professional staff of the OIPC, and inhouse and external lawyers as to the likely effectiveness and enforceability of those conditions. (Note: correspondence with DPIE 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.)
DPIE reviews the effectiveness and enforceability of consent conditions as a routine part of its compliance and enforcement role. This experience is incorporated in DPIE’s advice to the Commission on proposed consent conditions.
The IPC is specifically a consent authority for SSD and does not have any compliance or enforcement role. Other bodies – principally DPIE – are responsible for enforcement of conditions of consent and the IPC relies on DPIE’s advice in drafting conditions of consent that are workable, enforceable and do not cause unintended consequences. Note: this correspondence with DPIE 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.
In determining if a case will come to the Commission or not, DPIE is responsible for determining whether public objections it receives during its exhibition of a development application are ‘unique’ or not. To do this, DPIE 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.
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.
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 DPIE which requires the Commission to use DPIE’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 DPIE.
The public interest is one of the many mandatory matters that the IPC 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).
No, the Commission is not obliged to make a determination consistent with DPIE’s recommendation.
The Commission’s determination of an SSD application must be informed by DPIE’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 DPIE, based on its weighing of the evidence before it, it can make a determination that is inconsistent with DPIE’s recommendation.
The Applicant and DPIE are afforded the opportunity to meet with the Commission’s Panel to discuss the Application and the findings of DPIE’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 DPIE 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 DPIE 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.
The Minister’s Statement of Expectations for the Commission makes it clear that DPIE 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 DPIE to carry out any further assessment it requires.
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 project 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, DPIE 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.
How the input of Councils is facilitated in the assessment of SSD applications is a matter for DPIE, 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. The Commission will reach out to both elected representatives and management from adjoining councils to invite them to meet with the Commission Panel to discuss any concerns they might have in relation to the proposed development.
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.
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 DPIE as well as all other submissions.
When appointing Members to a Panel to determine a particular development application or provide advice on a planning matter, the Chairperson will ordinarily take the following matters into account:
Generally, the Chairperson will appoint:
The Chairperson of the Commission is authorised to nominate another member of the Commission to appoint members for any particular matter, and may do so if necessary for any reason.
The NSW Planning Assessment Commission was established on 3 November 2008 under section 23B of the Environmental Planning and Assessment Act 1979 to determine applications for major developments, to review and carry out public hearings into any planning related matter and to provide independent expert advice to Government on planning and development matters.
Members were appointed by the Minister for Planning and had expertise in the fields of planning, architecture, urban design, heritage, the environment, land economics, engineering, traffic and transport, tourism, law, government and public administration.
A Ministerial delegation applied which defined the types of application that were referred to the Commission by the Department of Planning and Environment for determination. These included applications where a reportable political donation had been made by a proponent, applications objected to by the relevant council, and applications where more than 25 objections had been received by the Department of Planning and Environment.
The Commission also carried out reviews of any aspect of a development and held public hearings if requested to do so by the Minister for Planning or Secretary of the Department of Planning and Environment. Each review had its own terms of reference, which set out the Commission’s review task.
The Planning Assessment Commission was renamed the Independent Planning Commission on 1 March 2018
The Office of the Commissioners of Inquiry for Environment and Planning was created by the Environmental Planning and Assessment Act, 1979 to conduct independent public inquiries into disputes concerning environmental and heritage issues, planning problems and development projects.
A Commission of Inquiry reported its findings and recommendations to the Minister and to the public. The Minister was required to consider the findings and recommendations of the Commission of Inquiry before determining the outcome of a particular development application.
Four Commissioners including the Chairman were appointed by the Governor of NSW. The Commissioners had qualifications and experience including in the fields of law, planning and development control, building regulation, local government, engineering and environmental control.
Public hearings were also carried out by the Commission of Inquiry, and after 1988 local councils were also given the power to request inquiries into significant developments where they were the determining authority.
The Office of the Commissioners of Inquiry for Environment and Planning ceased to exist on 3 November 2008 when the Planning Assessment Commission was created.
The Environmental Planning and Assessment Regulation 2000 requires the Commission to provide an annual report on its operations to the Minister for Planning and Public Spaces.