All systems are “go” for new Assessment Panels and Assessment Managers on 1 October 2017 — what you need to know!

2 August 2017

The commencement date for provisions of the Planning, Development and Infrastructure Act 2016, which require the establishment of new Assessment Panels and the appointment of Assessment Managers under that Act, has been formally proclaimed as 1 October 2017.

The effect of the portions of the PDI Act and associated Regulations proclaimed yesterday are that:

  1. Councils who presently have CDAP’s must ensure that they establish their new Council Assessment Panels before 1 October 2017.
  2. Where a Council establishes its new CAP in accordance with #1 above, its current CDAP will no longer be able to act under the Development Act 1993 and will, therefore, effectively cease to exist on 1 October 2017.
  3. CAP’s must be appointed in accordance with section 83 of the PDI Act.
    • 3.1   CAP’s may comprise between 3 and 5 members, only one of whom may be an elected member of the Council.
    • 3.2   The terms of office for CAP members is not limited by the PDI Act and can be for a term determined by the Council.
    • 3.3   Councils must determine the conditions of appointment for CAP members, or the method by which those conditions will be determined, the grounds upon which and the procedures by which, a member may be removed from office.
    • 3.4   Please note that section 83 of the PDI Act does not contain the detailed conditions of appointment and grounds for removal from office which are currently contained within section 56A of the Development Act. The PDI Act leaves these matters up to individual Councils to determine. We recommend that Councils consider the use of Terms of Reference or similar to clearly define these matters.
    • 3.5   Councils must determine who will act as the presiding member of the CAP and the process for appointing an acting presiding member. Please note that the term “acting presiding member” is used in the PDI Act which signifies an intention that this position be an acting position and not an incumbent deputy as is the case now.
    • 3.6   Councils may also appoint deputy members of the CAP. Such members can attend meetings in the place of absent CAP members on an as-needs basis. The appointment of deputy members may assist Councils in avoiding quorum issues with their CAP’s which is particularly important given that they can only comprise a maximum of 5 members.
  4. Members of the CAP who are not elected members of the relevant Council are not, for the time being, required to be accredited professionals under the PDI Act or otherwise comply with section 83(2) of the PDI Act. The accreditation scheme is expected to come into effect in or around mid-2018 and we will keep you informed as it is developed.
  5. Where a Council fails to establish its CAP prior to 1 October 2017, its current CDAP will continue to exist and will be able to continue to determine development applications under the Development Act until the Minister constitutes a local assessment panel.
  6. You may recall from our previous Alerts and our Planning Reform Seminars that local assessment panels are appointed by the Minister under section 84 of the PDI Act as a replacement for a CAP.
  7. Where a local assessment panel is established for a Council by the Minister, that Council is prevented from appointing its own CAP. The local assessment panel is authorised by the PDI Act to exercise the delegations granted by the Council to its Panel and the relevant Council is responsible for the costs and liabilities of the local assessment panel.
  8. This mechanism is clearly intended to ensure that all Councils have their CAP appointed in time for 1 October 2017.
  9. For Councils that currently have Ministerial exemptions under section 56A of the Development Act which exempt them from particular CDAP membership requirements, please be advised that the PDI Act does not provide for similar exemptions. All Councils (except those who will have a Regional Assessment Panel appointed for their area) must have their CAP appointed in compliance with section 83 of the PDI Act prior to 1 October.
  10. In terms of Councils who presently have an RDAP established in their area, the Minister has confirmed that RAP’s will be appointed by him pursuant to section 84 of the PDI Act ahead of 1 October 2017.
  11. From 1 October 2017, CAP’s and RAP’s will be able to exercise powers and functions delegated to them by the Council to determine development applications under the Development Act. All development applications will continue to be lodged and assessed under this Act for the time being. Please note that the current legislative restrictions which compel Councils to delegate their development assessment powers and functions to staff and to their panels continue to apply; the difference from 1 October will be that the panel will be a CAP or RAP rather than a CDAP or RDAP.
  12. A new Code of Conduct for panel members has been released and will commence on 1 October 2017.
    • 12.1   Importantly, the new Code of Conduct imposes conflict of interest provisions which are similar to those which presently exist under the Development Act.
    • 12.2   Why this is important is because the conflict of interest provisions under the PDI Act itself only apply to direct and indirect pecuniary interests.
    • 12.3   The Code of Conduct bridges this “gap” by ensuring that, in addition, direct and indirect personal interests (other than an indirect interest that exists in common with a substantial class of persons) are also “caught”.
    • 12.4   It is also important to note that the new Code of Conduct continues to prohibit Assessment Panel members from:
    • 12.4.1   engaging in consultation outside of the panel process with any party on a proposed development application that is likely to be heard by the panel;
    • 12.4.2   giving advice to an applicant or other third party on a development application after it has been lodged outside of a panel meeting;
    • 12.4.3   speaking at a public meeting for or against a proposal where the purpose of the meeting is to discuss either a proposed development or a development application unless required by the Act;
    • 12.4.4   expressing an opinion on a development application or a proposed development outside of a panel meeting; and
    • 12.4.5  engaging in any other act or omission which may give rise to a reasonable presumption that they have prejudged a development proposal or application.
  13. All Code of Conduct complaints for CAP and RAP members are required to be made to, and addressed by, the State Planning Commission. Councils are not required to have a public officer for their CAP or RAP as a result.
  14. The Planning, Development and Infrastructure (General) Regulations will, from 1 October 2017 prescribe basic meeting procedures for CAP’s. These meeting procedures are limited to:
    • 14.1    instances where a CAP may exclude the public from attendance (i.e. go into confidence); which provisions are similar to those which presently exist in the Development Act;
    • 14.2   the recording of minutes and access to agendas and minutes by members of the public (which provisions are, again, similar to those which presently exist in the Development Act);
    • 14.3   the determination of quorum (again, similar to the Development Act);
    • 14.4   voting rights (again, similar to the Development Act);
    • 14.5  the validity of CAP proceedings in the event of a vacancy in membership or a defect in the appointment of a member (again, similar to the Development Act).All further meeting procedures may be determined by the CAP itself. To this end, we recommend that Councils ensure that their CAP’s are provided with draft meeting procedures for consideration and adoption at or ahead of their first meeting.
  15.  In terms of RAP’s, basic meeting procedures will be determined by the Minister. From documents we have seen to date, the basic meeting procedures will be similar to those described at 15 above.
  16. The CEO of each Council which establishes a CAP must appoint an Assessment Manager. The role of the Assessment Manager under the PDI Act is, for the time being, limited to assisting the CAP and ensuring that it is adequately resourced.
  17. At a later date, the role of the Assessment Manager will expand to include that of a relevant authority for development applications under the PDI Act.
  18. In respect of RAP’s, the Chief Executive of DPTI will appoint an Assessment Manager. From information provided to date, this appointment will be made in consultation with the relevant Councils.

For more information on CAP’s, RAP’s, Assessment Managers and the 1 October 2017 requirements, please call Victoria Shute on 8113 7104 or Tracy Riddle on 8113 7106 with any questions.