December 2006 Issue 32
ENVIRONMENT & PLANNING & BRIEFLY
Development (Panels) Amendment Act 2006
The Development (Panels) Amendment Act 2006 (the Panels Act) amends the Development Act 1993 and came into force on 23 November 2006. It introduces changes to procedure and membership of council Development Assessment Panels and imposes requirements regarding delegation for development assessment decisions.
The Development (Panels) (Transitional Provisions) Regulations 2006 also came into force on 23 November 2006. They prescribe a number of transitional arrangements in relation to the Panels Act, and in particular define a “final implementation day” as 26 February 2007. The changes to panels, procedures and delegations which are brought about by the Panels Act may not need to be implemented until the final implementation day. Where councils have made changes before that date however they may commence operating accordingly. We detail below the changes which all councils will be required to implement. The first steps for council are to prepare new delegations and to review its Terms of Reference to ensure consistency with the amendments.
Councils can resolve to adopt the delegations and Terms of Reference from now onwards but must have done so in order for them to be effective by 26 February 2007.
The new provisions provide that the Panel procedures are to be as determined by regulation or in the absence of regulation, the Panel itself. We have been suggesting that councils be proactive and provide their new Panel with a draft set of meeting procedures which, in the absence of regulations, the Panel can adopt as a whole or modify to suit the Panel’s preferred meeting style.
To assist we set out the many features of the legislative change and what needs to be done.
Membership of Council Development Assessment Panels
Section 10 of the Panels Act amends s 56A of the Development Act 1993, which concerns the establishment of Development Assessment Panels. The first requirement of s 10 involves a change to the membership of Panels. The legislative requirements are that:
Panels must consist of 7 members. In the case of a council wholly outside Metropolitan Adelaide, the Minister may approve Panels consisting of 5 or 9 members and those with areas wholly or partially within Metropolitan Adelaide, 9 members.
An independent presiding member must be appointed to the Panel by the council. The deputy presiding member is appointed by members of the Panel from either the independent or elected members of the Panel.
- The presiding member must not be a member or officer of the council, must be a fit and proper person, and subject to any regulation must be a person determined by the council to have a reasonable knowledge of the operation and requirements of the Act and have appropriate qualifications or experience in a field that is relevant to the activities of the Panel.
- Half the remaining members of the Panel (usually 3) must be fit and proper persons, and subject to regulation must be determined by the council to have a reasonable knowledge of the operation and requirements of the Act and have appropriate qualifications or experience in a field that is relevant to the activities of the Panel. The council must also ensure that the qualifications of independent members provide a reasonable balance across the fields that are relevant to the activities of the Panel.
- The remaining members of the Panel (usually 3) may comprise council members or officers of the council (provided such officers are not involved with development assessment in another capacity).
- At this stage it seems that the regulations do not prescribe any requisite knowledge and experience of the independent members of the Panels meaning that councils can proceed with the appointment of specialist members based on the limited criteria specified within the Act.
Councils must ensure that at least one Panel member is male, and at least one member is female, while trying as far a practicable to ensure equal numbers of men and women sit on the Panel.
The term of office of Panel members is to be determined by the council (not exceeding 2 years). Members are to be eligible for reappointment at the expiration of their term. Other conditions of appointment are to be determined by the council. A member whose term of office expires may nevertheless continue to act as a member, for a period of up to 6 months, until he or she is reappointed or a successor is appointed.
A public officer must be appointed by the council to the Panel, and cannot be a member of the Panel. The officer’s appointment must be published in the Gazette. The officer’s functions include ensuring the proper investigation of complaints about the conduct of a member of the Panel.
Panel members that are not members of the council must disclose their financial interests in accordance with the new Schedule 2. The disclosure is to the public officer of the Panel. The public officer must maintain a register of interests which must be made available for inspection. The relevant form for disclosing those interests have not yet been prescribed in regulations. It is anticipated that the financial interests which must be disclosed will be along the lines of those prescribed by the Local Government (General) Regulations 1999 in Form 3 which is the list of members’ interests which must be disclosed by elected members of the council.
Procedure of Council Development Assessment Panels
The second part of the s 56A amendments concerns changes to the procedural requirements of Panels. The changes require that:
- A quorum at a meeting of a Panel is the number of total appointed members divided by 2 (ignoring any fraction resulting from the division) and adding 1. This formula would generally equal 4 members, where the Panel membership is 7.
- Each member of the Panel is entitled to 1 vote on any matter, and if the votes are equal, the presiding member is entitled to a second or casting vote.
- Procedures to be observed in relation to the conduct of the business of a Panel will be prescribed by regulation and in the absence of regulation, may be determined by the Panel. We understand that at this stage there is no intention to prescribe procedures for Panels in regulations. Consequently, councils may wish to recommend a set of procedures to the Panel. The Panel can then adopt or modify the procedures according to its preferred method of operation.
The Terms of Reference for the Panel will also need to be revised or rewritten to reflect the changed procedures.
Delegation of Development Assessment Decisions
The Panels Act also introduces changes to council delegation procedures in relation to development assessment decisions. The changes require that:
- Councils must delegate powers and functions in determining whether or not to grant development plan consent to either the Panel, a delegated officer who is not a member of the council, or a regional development assessment panel. Councils are not required to establish a Panel if all of their powers and functions as a relevant authority have been delegated to other persons or bodies;
- Councils must establish a delegations policy explaining the basis upon which it will make delegations. The policy must be made available for inspection on the Internet and at the council.
Consequences of Transitional Regulations
The transitional regulations mean that:
- Councils are not required to make the delegations, establish their delegations policy or appoint a public officer until the final implementation day but nevertheless may do so before then in which case the new provisions are operative.
- If a council has not established a Panel in accordance with the changes then the original provisions of the Act as they relate to Panels continue to apply (until 26 February 2007).
- Where a council has established a Panel and issued delegations in accordance with the changes before 26 February 2007 the new DAP can act in relation to all development applications already made except where they have been the subject of Category 2 or 3 representations and those representors have appeared before the relevant authority or are due to appear.
- Where Panel members are appointed before 26 February 2006 they are required to comply with the disclosure requirements within 6 weeks after the day on which the register is established. If the Panel member is appointed after the day on which the register is established, disclosure must be made within 6 weeks after the day of appointment or by the 26 February 2007 whichever is the later.
Summary
The Development (Panels) Amendment Act 2006 will substantially impact the membership and procedures of Development Assessment Panels, and the delegation of a council’s powers and functions as a relevant authority. As a consequence of the Panels Act amendments relating to delegations, councils will no longer be able to act in their own right in relation to a determination of whether or not to grant development plan consent. Changes to councils’ delegations will need to be made, ready to be implemented by 26 February 2006. Councils will also need to establish and make available for inspection their delegations policy.
Councils will need to appoint members to the Panels and a public officer in accordance with the Panels Act requirements. The public officer will need to set up a register of interests.
Procedural changes will also mean that councils will need to review or rewrite Terms of Reference and the meeting procedures to be adopted by the Panel.
For further information about issues covered in this article, please contact Paul Leadbeter on 8210 1297 or pleadbeter@normans.com.au or Pierina Reina on 8210 1273 or E-mail preina@normans.com.au.
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