Environmental Planning and Assessment Act 1979 No 203
Historical version for 26 October 2009 to 7 January 2010 (accessed 15 August 2020 at 11:28) Current version
Part 6 Division 1AA
Division 1AA Planning administrators and panels
117C   Definitions
In this Division:
planning administrator means a person appointed as a planning administrator under section 118.
regional panel means a joint regional planning panel.
118   Appointment of planning administrator, planning assessment panel or regional panel
(1)  The Minister may appoint a planning administrator, a planning assessment panel or a regional panel (or all of them) to exercise functions of a council if:
(a)  the Minister is of the opinion that the council has failed to comply with its obligations under the planning legislation, or
(b)  the Minister is of the opinion that the performance of a council in dealing with planning and development matters (or any particular class of such matters) is unsatisfactory because of the manner in which the council has dealt with those matters, the time taken or in any other respect, or
(c)  the council agrees to the appointment, or
(d)  a report referred to in section 74C of the Independent Commission Against Corruption Act 1988 recommends that consideration be given to the appointment because of serious corrupt conduct by any of the councillors in connection with the exercise or purported exercise of functions conferred or imposed on the council by or under this Act.
(2)  A planning administrator may be appointed to exercise all or any particular function or class of functions of the council under this Act.
(3)  A planning assessment panel or regional panel may be appointed to exercise only all or any particular function or class of functions of the council:
(a)  as a consent authority, or
(b)  in relation to making of environmental planning instruments under Part 3 or under Division 1 of Part 2 of Chapter 6 of the Local Government Act 1993, or
(c)  in relation to the preparation, making and approval of development control plans, or
(d)  in relation to the preparation and approval of contributions plans.
(4)  A planning assessment panel or regional panel may not exercise the functions of a council for a continuous period of more than 5 years.
(5)  If a planning assessment panel exercises the functions of a council for a continuous period of more than 2 years, the Minister is, as soon as practicable after 2 years after the date on which the planning assessment panel was appointed, to conduct a review of the appointment and functions of the planning assessment panel.
(6)  A review under subsection (5) is to be conducted by the Minister in consultation with the Minister for Local Government, the Local Government and Shires Associations of New South Wales and any other industry organisation that the Minister considers to be relevant.
(7)  A planning administrator or planning assessment panel is to be appointed by order of the Minister published in the Gazette.
(7A)  Functions are to be conferred on a regional panel under this section by order of the Minister published in the Gazette.
(7B)  Before appointing a planning administrator or planning assessment panel, or conferring functions under this section on a regional panel, the Minister must notify the council concerned in writing of the proposed action (including the reasons for the proposed action) and request the council to show cause why the action should not be taken.
(7C)  The Minister must consider any written submissions made by the council within 21 days of notice being given under subsection (7B) and must not take action under this section earlier than 21 days after the notice is given.
(8)  Before appointing a planning administrator or a planning assessment panel, or conferring functions on a regional panel under this section, the Minister is to obtain the concurrence of the Minister for Local Government.
(9)  The Minister may appoint a planning administrator or a planning assessment panel, or confer functions on a regional panel under this section, for a reason set out in subsection (1) (b) only if the Minister has, by order published in the Gazette, provided heads of consideration for the exercise of power under subsection (1) (b), and has taken any of those heads of consideration that are relevant into account.
Editorial note.
 For orders under this subsection, see the Historical notes at the end of this Act.
(10)  The Minister may take action under this section in the circumstances specified in subsection (1) (d) without conducting an inquiry but, in that case, the Minister is to inquire into the matter as soon as practicable with a view to confirming or revoking the appointment.
(11)  The Minister must, as soon as reasonably practicable after appointing a planning administrator or a planning assessment panel, or conferring functions on a regional panel under this section, make the reasons for that appointment publicly available.
(12)  In this section:
failure to comply with obligations under the planning legislation includes:
(a)  a failure to carry into effect or enforce the provisions of this Act, an environmental planning instrument or a direction under section 55, 94E or 117, or
(b)  a failure to comply with the requirements of the staged repeal program under section 33B with respect to the preparation or making of a replacement local environmental plan, or
(c)  without limiting paragraph (a), a failure to comply with a determination under section 56, or
(d)  without limiting paragraph (a), a failure to provide access to and the use of staff and facilities to the Planning Assessment Commission, a joint regional planning panel or a planning arbitrator as referred to in section 23N (1).
serious corrupt conduct means corrupt conduct (within the meaning of the Independent Commission Against Corruption Act 1988) that may constitute a serious indictable offence, being conduct in connection with the exercise or purported exercise of the functions of a councillor.
118AA   Planning assessment panels
(1)  The bodies listed in Part 1 of Schedule 5B from time to time are established by this Act as planning assessment panels.
(2)  A planning assessment panel is a body corporate with the corporate name specified in Part 1 of Schedule 5B.
(3)  A planning assessment panel is a statutory body representing the Crown and has the status, privileges and immunities of the Crown.
(4)  A planning assessment panel is to consist of such members (being not less than 3 and not more than 5) as are appointed by the Minister.
(5)  The members of the planning assessment panel are to be persons who together have, in the opinion of the Minister, relevant skills and knowledge in planning and development matters.
(6)  The Minister is to appoint a member of the planning assessment panel as the chairperson of the planning assessment panel.
(7)  Part 2 of Schedule 5B has effect with respect to the members of planning assessment panels.
(7A)  The regulations may make provision for or with respect to the procedures of planning assessment panels.
(8)  A planning assessment panel is, in the exercise of its functions, subject to the control and direction of the Minister.
(9)  A planning assessment panel is to provide the Minister with such information and material as the Minister may require in relation to its policies, programs and procedures.
(10)  Despite subsection (8), a planning assessment panel is not subject to the control of the Minister in determining a development application.
(11)  The Minister may, by order published on the NSW legislation website, amend Part 1 of Schedule 5B for the purpose of:
(a)  establishing a planning assessment panel, or
(b)  abolishing a planning assessment panel, or
(c)  changing the name of a planning assessment panel.
(12)  Any such order may contain savings and transitional provisions.
118AB   Functions of planning administrators or panels
(1)  During the period of appointment, the planning administrator, planning assessment panel or regional panel:
(a)  is to exercise the functions of the council under this Act that are specified in the order of appointment, and
(b)  is, in the exercise of those functions, taken to be the council, and
(c)  is to exercise those functions to the exclusion of the council except to the extent that the order of appointment provides otherwise, and
(d)  is, in the exercise of those functions, to give priority to particular functions to the extent that the order of appointment so provides.
(2)  Despite subsection (1), a planning administrator or planning assessment panel is not to enter into contracts in the exercise of the planning administrator’s or panel’s functions except:
(a)  with the consent of the Minister and the concurrence of the Minister for Local Government, or
(b)  in the case of contracts for the appointment of staff—with the authority conferred by a regulation made under section 118AF.
(3)  Subsection (1) has effect even if the appointment of the planning administrator or panel is subsequently found not to have been validly made.
118AC   Costs of planning administrator or planning assessment panel
(1)  A council, the functions of which are exercised by a planning administrator or planning assessment panel, is to pay to the Director-General out of the council’s consolidated fund, the remuneration and costs and expenses of the planning administrator or planning assessment panel.
(2)  The Minister may do either or both of the following:
(a)  exempt a council from payment of all or part of the remuneration and costs and expenses of the planning administrator or planning assessment panel,
(b)  resolve any dispute as to the amount of any such remuneration, costs or expenses.
118AD   Council to assist planning administrator or panel
(1)  A council must, if directed to do so by the Minister, provide any of the following with such staff, facilities and documents as are specified in the direction:
(a)  a planning administrator, planning assessment panel or regional panel appointed to exercise functions of the council,
(b)  a staff member of any such planning administrator, planning assessment panel or regional panel,
(c)  a member of any such panel.
(2)  A member of a council, or a member of staff of a council, must not obstruct any of the persons in subsection (1) (a)–(c) in the exercise of his or her functions under this Division.
Maximum penalty: 10 penalty units.
(2A)  The general manager of a council must carry out any reasonable direction of the planning administrator or planning assessment panel relating to functions of the council being exercised by the planning administrator or panel.
Maximum penalty: 10 penalty units.
(3)  Before giving a direction under subsection (1), the Minister is to consult with the Minister for Local Government.
118AE   Annual report on activities of planning administrators and planning assessment panels
The Director-General is, in the annual report of the Department, to report on the activities of planning administrators and planning assessment panels during the period covered by the annual report, including:
(a)  the financial activities of planning administrators and planning assessment panels, and
(b)  the exercise of council functions by planning administrators and planning assessment panels.
118AF   Regulations
The regulations may make provision for or with respect to the appointment and functions of a planning administrator, planning assessment panel or regional panel and, in particular, for or with respect to:
(a)  the accommodation, if any, to be provided at the offices of the council for the planning administrator, planning assessment panel or regional panel and any other persons assisting the planning administrator, planning assessment panel or regional panel in the exercise of the planning administrator’s, planning assessment panel’s or regional panel’s functions, and
(b)  the appointment of staff by the planning administrator, planning assessment panel or regional panel to assist in the exercise of the planning administrator’s, planning assessment panel’s or regional panel’s functions.
118AG   Protection for exercise of certain functions by Minister
(1)  This section applies to any function (a protected function) conferred or imposed on the Minister (including a delegate of the Minister) relating to the appointment of a planning administrator or planning assessment panel, or the conferral of functions on a regional panel, under this Division.
(2)  The exercise by the Minister of any protected function may not be:
(a)  challenged, reviewed, quashed or called into question before any court of law or administrative review body in any proceedings, or
(b)  restrained, removed or otherwise affected by any proceedings.
(3)  Without limiting subsection (2), that subsection applies whether or not the proceedings relate to any question involving compliance or non-compliance, by the Minister (including a delegate of the Minister), with the provisions of this Division or the rules of natural justice (procedural fairness).
(4)  Accordingly, no court of law or administrative review body has jurisdiction or power to consider any question involving compliance or non-compliance, by the Minister (including a delegate of the Minister), with those provisions or with those rules so far as they apply to the exercise of any protected function.
(5)  This section has effect despite any provision of this Act or other legislation or any other law (whether written or unwritten).
(6)  In this section:
exercise of functions includes:
(a)  the purported exercise of functions, and
(b)  the non-exercise or improper exercise of functions, and
(c)  the proposed, apprehended or threatened exercise of functions.
proceedings includes:
(a)  proceedings for an order under section 124, and
(b)  proceedings for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, and
(c)  without limiting paragraph (b), proceedings in the exercise of the inherent jurisdiction of the Supreme Court or the jurisdiction conferred by section 23 of the Supreme Court Act 1970.