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Contents (1979 - 203)
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Environmental Planning and Assessment Act 1979 No 203
Current version for 25 August 2017 to date (accessed 21 September 2017 at 22:26)
Part 2A
Part 2A Other planning bodies
Division 1 Preliminary
23A   Definitions
In this Part:
Commission means the Planning Assessment Commission.
Division 2 Planning Assessment Commission
23B   Planning Assessment Commission
(1)  There is constituted by this Act a body corporate with the corporate name of the Planning Assessment Commission of New South Wales.
(2)  The Commission has such functions as are conferred or imposed on it by or under this or any other Act.
(3)  The Commission is not subject to the direction or control of the Minister, except in relation to the procedures of the Commission and to the extent specifically provided for in this Act.
(4)  The Commission is a statutory body representing the Crown.
Note.
 By virtue of section 13A of the Interpretation Act 1987, a statutory body representing the Crown has the status, privileges and immunities of the Crown.
(5)  Schedule 3 has effect with respect to the Commission.
23C   Chairperson of Commission
The work of the Commission is, subject to this Act and the regulations, to be allocated by the chairperson of the Commission.
Note.
 The chairperson is appointed under Schedule 3.
23D   Functions of Commission
(1)  The Commission has the following functions:
(a)  any function delegated to the Commission under this or any other Act,
(b)  if requested to do so by the Minister or the Secretary:
(i)  to advise the Minister or the Secretary as to planning or development matters, environmental planning instruments or the administration or implementation of the provisions of this Act, or any related matter, and
(ii)  to review any (or any aspect or part of any) development, activity, infrastructure or project to which this Act applies, and
(iii)  to hold a public hearing into any matter the subject of any such advice or review, and
(iv)    (Repealed)
(v)  to review a proposal to constitute, alter or abolish a development area under section 132 or 133,
(c)  any function of a regional panel, a local planning panel or a planning assessment panel conferred on it by order in writing by the Minister,
(d)  if a regional panel has not been appointed for any part of the State, any function that is conferred on a regional panel under an environmental planning instrument applicable to that part or that is otherwise conferred on a regional panel under this Act.
(2)  For the purposes of subsection (1) (c) and (d), the Commission has all the functions of the panel concerned.
(3)  The Commission may, with the approval of the Secretary:
(a)  arrange for the use of the services of any staff or facilities of a public authority, and
(b)  engage such consultants as it requires to exercise its functions.
(4)    (Repealed)
23E   Reviews by, and procedures of, Commission
The regulations may make provision for or with respect to the following:
(a)  the procedures of the Commission, including the procedures for reviews relating to any or all, or a class, of its functions,
(b)    (Repealed)
(c)  without limiting paragraph (a), providing that parties are not to be represented (whether by an Australian legal practitioner or any other person) or are only to be represented in specified circumstances,
(d)  the conferral on the Commission of power to require a person to give evidence or produce documents for the purposes of a review or the exercise of any of its other functions,
(e)  additional procedural requirements relating to hearings involving a proposed development or activity that may involve the need for an approval under the Water Management Act 2000 or a licence under the Water Act 1912,
(f)  reports of the Commission’s findings and recommendations,
(g)  the making of findings and recommendations of the Commission public,
(h)  the provision of information by the Commission.
23F   No appeals against decisions by Commission after public hearings
(1)  This section has effect despite any other provision of this Act or the regulations.
(2)  An appeal under this Act may not be made in respect of a decision of the Commission in exercising a function conferred on the Commission by or under this Act (including a function delegated to it under this Act) if the decision was made by the Commission after a public hearing.
Division 3 Joint regional planning panels
23G   Joint regional planning panels
(1)  The Minister may, by order published on the NSW legislation website, constitute a joint regional planning panel for a particular part of the State specified in the order.
(2)  A regional panel has the following functions:
(a)  any of a council’s functions as a consent authority that are conferred on it under an environmental planning instrument,
(b)  any functions that are conferred on it under Division 1AA (Planning administrators and panels) of Part 6,
(c)  to advise the Minister or the Secretary as to planning or development matters or environmental planning instruments relating to the part of the State for which it is appointed, or any related matters, if requested to do so by the Minister or the Secretary (as the case may be).
(2A)  An environmental planning instrument may only confer a council’s functions as consent authority on a regional panel if the development is of a class or description set out in Schedule 4A. The functions of a consent authority may only be conferred on a regional panel in accordance with subsection (2) (a) and this subsection.
(2B)  Any environmental planning instrument that is in force on the commencement of subsection (2A) ceases to have effect to the extent that it is inconsistent with that subsection.
(3)  A regional panel has the functions conferred or imposed on it by or under this or any other Act.
(3A)  Without limiting subsection (3), a regional panel may exercise functions delegated to it under this or any other Act.
(4)  A regional panel is not subject to the direction or control of the Minister, except in relation to the procedures of the regional panel and to the extent specifically provided for in this Act.
(4A)  Legal proceedings by or against a regional panel are to be taken in the name of the regional panel and not by or against the members of the regional panel.
(5)  A regional panel is a statutory body representing the Crown.
Note.
 By virtue of section 13A of the Interpretation Act 1987, a statutory body representing the Crown has the status, privileges and immunities of the Crown.
(5A)  Subject to the regulations, a regional panel is, in the exercise of functions conferred under subsection (2) (a), taken to be the council whose functions are conferred on a regional panel as referred to in subsection (2) (a).
(5B)  A regional panel is to exercise functions conferred as referred to in subsection (2) (a) to the exclusion of the applicable council (subject to any delegation under this Act).
(5C)  Subsections (5A) and (5B) apply to the Commission in its exercise of the functions of a regional panel under an environmental planning instrument that are conferred on the Commission under section 23D (1) (d) in the same way as they apply to a regional panel in the exercise of functions conferred as referred to in subsection (2) (a).
(6)  Schedule 4 has effect with respect to regional panels.
23H   Regulations
The regulations may make provision for or with respect to the following matters:
(a)  the functions conferred by this Act on a regional panel including its procedures in exercising its functions, and procedures in relation to its determination of development applications and applications to modify development consents,
(b)  the provision of information and reports by regional panels,
(c)  without limiting paragraph (a), providing that parties to matters being determined by a regional panel are not to be represented (whether by an Australian legal practitioner or any other person) or are only to be represented in specified circumstances.
Division 4 Local planning panels and council delegates
23I   Exercise of consent authority functions on behalf of councils where local planning panel constituted
(1)  This section applies in respect of an area of a council for which a local planning panel has been constituted under this Division.
(2)  The functions of a council as a consent authority under Part 4 in respect of any such area are not exercisable by the councillors. They are exercisable on behalf of the council by:
(a)  the local planning panel, or
(b)  an officer or employee of the council to whom the council delegates those functions, or
(c)  a regional panel on which those functions are conferred under section 23G.
(3)  The Minister may give directions to councils under section 117 (either to particular councils or to councils generally) on the development applications that are to be determined on behalf of the council by a local planning panel. This subsection does not apply to development applications that are required to be determined by a regional panel.
(4)  For the purposes of this section, the functions of a council as consent authority under Part 4 include:
(a)  the determination of development applications and applications for the modification of development consents, and
(b)  without limiting paragraph (a), the functions of a consent authority under Divisions 2 and 2A of Part 4 and sections 89A, 93I, 94, 94A, 94B, 94C, 94CA, 94EF, 94F, 95 (2), 96 (2) and 96AA, and
(c)  the functions of a consent authority or council under this Act or any other Act that relate to the carrying out of development (including the making of development applications) and that are declared by the regulations to be functions of a council as consent authority,
but do not include the functions of a consent authority or council that the regulations declare are not the functions of a council as consent authority.
23J   Constitution of local planning panels
(1)  A council may constitute a single local planning panel for the whole of the area of the council.
(2)  The following councils must constitute a single local planning panel for the whole of the area of the council:
(a)  the council of an area that is wholly within the Greater Sydney Region,
(b)  the council of the City of Wollongong.
(3)  A single local planning panel may be constituted by 2 or more councils. In that case, any function exercisable by a council in relation to the panel is to be exercised jointly by all those councils.
(4)  The Minister may, under section 117, direct 2 or more particular councils referred to in subsection (2) to constitute a single local planning panel.
(5)  If a council fails to constitute a local planning panel that it is required to constitute, the Minister may constitute the panel and for that purpose is taken to be the council.
(6)  A local planning panel is subject to any directions of the Minister under section 117.
(7)  A local planning panel is not subject to the direction or control of the council, except in relation to any matter relating to the procedure of the panel (or to the time within which it is to deal with a matter) that is not inconsistent with any directions of the Minister under section 117.
23K   Members of local planning panels
(1)  The members of a local planning panel are to be appointed by the relevant council.
(2)  Each local planning panel is to comprise (subject to this section) the following 4 members:
(a)  an approved independent person appointed as the chairperson of the panel with relevant expertise that includes expertise in law or in government and public administration,
(b)  2 other approved independent persons with relevant expertise,
(c)  a representative of the local community who is not a councillor or mayor.
(3)  A person is not eligible to be a member of a local planning panel constituted by a council if the person is:
(a)  a councillor of that or any other council, or
(b)  a property developer within the meaning of section 96GB of the Election Funding, Expenditure and Disclosures Act 1981, or
Note.
 Section 96GB (1) of the Election Funding, Expenditure and Disclosures Act 1981 provides that property developer includes a person who is a close associate of a property developer.
(c)  a real estate agent within the meaning of the Property, Stock and Business Agents Act 2002.
(4)  For the purposes of this section, an approved independent person is an independent person approved by the Minister for appointment to the local planning panel or a person selected from a pool of independent persons approved by the Minister for appointment to the local planning panel. The Minister may approve different pools of independent persons.
(5)  If the area of the relevant council is divided into wards, the council is to appoint representatives of the local community for each ward as members of the local planning panel. All those representatives are entitled to attend a meeting of the local planning panel, but only one of them designated by the chairperson of the panel comprises the quorum for the meeting and is entitled to vote and be heard on a matter before the panel.
(6)  The representative so designated by the chairperson for a matter before the panel is to be the representative for the ward that the chairperson considers is most closely associated with that matter.
(7)  Relevant expertise for the purposes of this section is expertise in at least one area of planning, architecture, heritage, the environment, urban design, economics, traffic and transport, law, engineering, tourism or government and public administration.
23L   Functions of local planning panels
(1)  A local planning panel constituted by a council has the following functions:
(a)  the functions of the council as a consent authority under Part 4 in respect of the area for which the panel is constituted as provided by section 23I,
(b)  to advise the council on any planning proposal that has been prepared or is to be prepared by the council under section 55 and that is referred to the panel by the council,
(c)  to advise the council on any other planning or development matter that is to be determined by the council and that is referred to the panel by the council.
(2)  Subsection (1) (a) does not exclude a delegate of the council or a regional panel exercising functions as a consent authority under this Act.
(3)  The Minister may give directions to councils under section 117 (either to particular councils or to councils generally) on the planning proposals that are required to be referred to a local planning panel for advice.
(4)  This section does not limit the functions that may be exercised by a local planning panel under this Act.
23LA   Miscellaneous provisions relating to local planning panels
(1)  Schedule 4B contains provisions with respect to the members and procedure of local planning panels.
(2)  The regulations may make provision for or with respect to the following:
(a)  the functions conferred under this Act on local planning panels, including the procedures of panels in exercising their functions,
(b)  without limiting paragraph (a), providing that parties are not to be represented (whether by an Australian legal practitioner or any other person) or are only to be represented in specified circumstances,
(c)  the provision of information or reports by councils with respect to the exercise of functions by local planning panels.
(3)  The council is to provide staff and facilities for the purpose of enabling a local planning panel to exercise its functions.
(4)  The council is to monitor the performance of local planning panels constituted by the council.
(5)  A council that has constituted a local planning panel must provide a report to the Secretary, each year or other period directed by the Secretary, as to the following:
(a)  whether a local planning panel had been constituted by the council during the reporting period,
(b)  the matters referred to the panel in the reporting period,
(c)  the persons appointed to the panel,
(d)  any other matters relating to the exercise of functions by the panel as directed by the Secretary.
(6)  Legal proceedings by or against a local planning panel are to be taken in the name of the panel and not by or against the members of the panel.
(7)  A local planning panel may delegate any function of the panel under this or any other Act (other than this power of delegation) to the general manager or other staff of the council. Section 381 of the Local Government Act 1993 does not apply to any such delegation.
(8)  For the avoidance of doubt, a member of a local planning panel is a public official for the purposes of the Independent Commission Against Corruption Act 1988.
Division 6 Matters relating to councils and council functions
23M   Obligation to consult with council about certain decisions
The Commission or a regional panel must not exercise a function that will result in the making of a decision that will have, or that might reasonably be expected to have, a significantly adverse financial impact on a council until after it has consulted with the council.
23N   Obligations of councils to assist Commission and regional panels
(1)  The Commission or a regional panel is entitled:
(a)  to have access to, and to make copies of and take extracts from, records of a council relevant to the exercise of the Commission’s or panel’s functions, and
(b)  to the use of the staff and facilities of a relevant council in order to exercise the Commission’s or panel’s functions.
(2)  The general manager of a council must carry out any reasonable direction of the Commission or a regional panel relating to functions of the council being exercised by the Commission or panel.
Maximum penalty: 10 penalty units.
(3)  A member of a council, or the general manager or other member of staff of a council, must not obstruct the Commission, a regional panel or a member of the Commission or a panel in the exercise of the Commission’s or panel’s functions under this Act.
Maximum penalty: 10 penalty units.
23O   Recovery of certain costs
(1)  A council is to pay to the Secretary out of the council’s consolidated fund:
(a)  the remuneration, costs and expenses of the Commission in respect of the exercise of any functions of a consent authority involving development on land within the area of the council, and
(b)  any other costs relating to the provision of services to the Commission by the Department in respect of the exercise of any such functions.
(2)  The councils for an area or part of an area situated in a part of the State for which a regional panel has been appointed are to pay to the Secretary, out of the councils’ consolidated funds, the remuneration, costs and expenses of the panel and of the Department relating to the costs of administration of the panel.
(3)  A council is to pay, out of the council’s consolidated fund, the remuneration, costs and expenses of any local planning panel established by the council.
(5)  The Minister may do either or both of the following:
(a)  exempt a council from payment of any or all of any such remuneration, costs or expenses,
(b)  resolve any dispute as to the amount of any such remuneration, costs or expenses.