Statement of Expectations Order

The minister's Environmental Planning and Assessment (Statement of Expectations) Order 2024 sets out the minister's expectations for how councils should carry out development assessment, planning proposal preparation and strategic planning.

The order relates to the minister's powers to appoint planning administrators or confer functions of councils onto Sydney district or regional planning panels under section 9.6(1)(b) of the Environmental Planning and Assessment Act 1979 (EP&A Act) where a council's performance is unsatisfactory. This action would be taken only as a last resort, as explained below, but the expectations also guide councils, and the community, on how councils' planning functions should be undertaken.

The order contains heads of consideration which must be taken into account before the minister can appoint a planning administrator or confer functions to Sydney district or regional planning panels. These considerations link to expectations that set out how key planning functions of councils should be undertaken, such as the timeframes they should be completed by.

The order commences on 1 July 2024.

We need our planning system to operate as efficiently as possible to ensure economic growth and development in NSW for the benefit of the entire community, while protecting the environment and enhancing people's way of life. To do this, the planning system needs to be fair, efficient, transparent and ensure all participants in the planning process are accountable for their performance.

The order has been updated to ensure it reflects current government policy and priorities and provides reasonable timeframes for councils to comply with. The updated order will be supported by a monitoring and reporting framework to ensure councils strive to meet the expectations.

The order also needed to be updated to help address the state's housing crisis. Under the National Housing Accord, the NSW Government has committed to providing capacity for 377,000 new homes by 2029. We need councils and state government to undertake their planning functions efficiently and effectively to reach this target.

The heads of consideration in the previous Statement of Expectations Order continue to apply, being:

• whether or not the council has failed to meet the minister's expectations in relation to council performance
• the duration, frequency and degree to which the council has performed, or failed to perform, in accordance with the minister's expectations
• the range and type of planning and development matters in respect of which the council has performed, or failed to perform, in accordance with the minister's expectations
• whether or not an appointment under s.9.6(1)(b) should be made in relation to one or more of a particular class of planning and development matter, or all planning and development matters dealt with by the council
• the effect of any caretaker period preventing a council's performance in dealing with the planning and development matters (or any particular class of such matters) as set out in clause 5 [the expectations]
• the public interest.

Explanation

All the existing heads of considerations are helpful in determining council performance. They include considerations such as how often the expectations have not been met and the range of functions the council has failed to perform.

New considerations

The new heads of consideration to be taken into consideration in exercising the minister’s intervention power under section 9.6(1)(b) are:

• the individual circumstances of each council, for example whether external events like natural disasters have impacted the council, or council has received an unexpectedly high volume of DAs compared to their current staffing levels
• whether or not other available interventions or support have failed to result in improvements to council performance in relation to the minister's expectations
• with respect to development applications for residential accommodation:
  • whether the minister's expectations have been met for development assessment timeframes, and
  • whether the council has been identified as having a key responsibility in the delivery of housing supply by the NSW Government.

Regionally significant development applications

1. Council should prepare assessment reports for a regionally significant development application and refer to the relevant Sydney district or regional planning panel as soon as practical and within an average of 250 days from lodgement.

Explanation

This expectation is fundamentally the same as the expectation in the minister’s 2021 Statement of Expectations Order, however, it is being updated to clarify that the 250-day benchmark refers to an average timeframe. The 2021 order may be interpreted to mean that the benchmark must be met for every regionally significant DA the council receives. This may be unachievable given the variation in quality and complexity of DAs submitted.

Submission to lodgement

2. Council should lodge DAs for which it is the consent authority as soon as practical and within an average of:
   • 14 days of submission between 1 July 2024 to 30 June 2025
   • 7 days of submission from 1 July 2025 onwards.

Explanation

Some councils are taking an unreasonably long time to lodge DAs once submitted on the NSW Planning Portal by applicants, well over the expectations listed above. This delays the assessment and delivery of housing and other development.

Determination

3. Council should determine DAs for which it is the consent authority (including DAs determined by a local planning panel) as soon as practical and whichever is the lesser of council’s previous financial year average, or within an average of:
   • 115 days of lodgement between 1 July 2024 to 30 June 2025
   • 105 days of lodgement between 1 July 2025 to 30 June 2026
   • 95 days of lodgement between 1 July 2026 to 30 June 2027
   • 85 days of lodgement from 1 July 2027 onwards.

Explanation

Determination timeframes are one of the main measures of how efficiently the planning system is operating. These timeframes have increased substantially in recent years, slowing the delivery of housing and other development. Councils achieving the above targets will greatly help the delivery of housing to meet NSW National Housing Accord commitment.

The department recognises that DAs vary greatly in type, scale, planning merit and quality of documentation provided. Setting an average expectation for the whole council takes into account these variations.

The expectations are measured in 'gross days' that do not take into account any 'stop the clock' times where councils are waiting for additional information. However, as the expectation is the same average which must be met by all councils across the state, this will not unfairly compare councils. Also, end-to-end timeframes are likely more meaningful to the community and industry.

The department also acknowledges that DAs differ greatly for councils across the state. The department considers these expectations are achievable for all councils based on past performance. However, the department will consider these differences and circumstances of a council if the expectations are not met.

Determination timeframes include DAs determined under delegation by council officers and by local planning panels but do not include modifications or DAs subject to reviews under s8.2 of the EP&A Act.

Variation to development standards

4. Council should comply with the procedural and reporting requirements in accordance with the Guide to Varying Development Standards, for development applications that involve variations to development standards.

Explanation

Recent amendments to clause 4.6 of the Standard Instrument LEP Order have removed the need to obtain the Planning Secretary's concurrence when varying development standards. This was done because consent authorities were able to assume the Planning Secretary's concurrence in most circumstances, so the mechanism was providing minimal oversight.

Updated procedural and reporting requirements when using clause 4.6 are detailed in the Guide to Varying Development Standards. They require councils to provide reasons for decisions through the NSW Planning Portal to enable an appropriate level of oversight, transparency and accountability. This expectation requires councils to comply with the procedural and reporting requirements in the Guide.

Submission

1. Council should decide whether to support a proponent-initiated planning proposal and submit it for gateway determination within the 'planning proposal' stage benchmark timeframes in the LEP Making Guideline (PDF, 4.7 MB).

Explanation

The LEP Making Guideline differentiates between different categories of planning proposals:

• Basic – minor LEP changes for administrative and minor matters.
• Standard – an LEP amendment for a specific site seeking a change in planning controls that is consistent with the existing strategic planning framework.
• Complex – a complex LEP change that may not be wholly consistent with the existing strategic planning framework, and/or types of LEP changes that are not defined as Basic or Standard.
• Principal LEP – comprehensive LEP change progressed by council and/or a proposal that includes multiple housekeeping changes.

The guideline sets different timeframe benchmarks for completing the various stages of the planning proposal process based on these categories.

The expectations relate to the stages of the planning proposal process that councils are predominantly responsible for.

Deciding whether to support or oppose a proponent-initiated planning proposal and submitting it for gateway determination is the first step in the planning proposal process that councils are responsible for. It should be completed within the timeframes set out in the LEP Making Guideline:

• Basic proposal – 80 days
• Standard proposal – 95 days
• Complex proposal – 120 days

Exhibition and assessment

1. Council as planning proposal authority should publicly exhibit a planning proposal, respond to submissions, and either resolve to use local plan making authority (LPMA) delegations or request the department to make the plan within the “public exhibition and assessment” stage benchmark timeframes set out in the LEP Making Guideline:
   • Basic proposal – 70 days
   • Standard proposal – 95 days
   • Complex proposal – 115 days
   • Principal proposal – 95 days

Explanation

Council will need to publicly exhibit planning proposals, allow the proponent to respond to submissions (if proponent-initiated), assess the proposal, with any variations, and resolve to make the plan (if LPMA) or send it to the department for making within the relevant timeframes.

Finalisation

1. Council as Local Plan Making Authority should make a Local Environmental Plan which has been delegated to council within the 'finalisation' stage benchmark timeframes set out in the LEP Making Guideline:
   • Basic proposal – 25 days
   • Standard proposal – 55 days
   • Complex proposal – 70 days
   • Principal proposal – 80 days

Explanation

The finalisation stage is the final stage of the planning proposal process involving the making of the plan.

Where a gateway determination specifies a timeframe for a planning proposal to be made, this timeframe should also be met. These timeframes cover the whole process from gateway determination to the making of the LEP amendment, and generally align with the LEP Making Guideline.

Local strategic planning statements

1. Council should prepare or review its LSPS in accordance with the requirements of the Act, and standards and timeframes identified by the department.

Explanation

Local strategic planning statements (LSPS) are an important part of the planning system, bridging the gap between a district strategic plan or regional plan and implementation at the local level through an LEP. This expectation seeks to ensure an updated LSPS is maintained for every council.

The EP&A Act requires a council to prepare a LSPS and review it at least every 7 years. Councils must also review their LEPs as soon as practical after district strategic plans are made to give effect to the plan. This may also require their LSPS to be reviewed.

The department may give more prescriptive direction on when LSPSs must be updated, and update existing guidance on what should be included in an LSPS. This is why the expectation refers to being in accordance with the standards and timeframes within the department's delivery programs.

Preparation of local planning strategies

2. Council should prepare a local planning strategy (such as a local housing strategy) to ensure the actions identified in the relevant regional or district strategic plan (including any dwelling provision targets), and local strategic planning statement, are delivered in accordance with the standards and timeframes identified by the department.

Explanation

Local planning strategies are required to provide more detailed strategic planning than LSPSs, often focusing on a priority of the council, such as delivering housing through a local housing strategy. This expectation ensures local planning strategies are prepared to deliver on the actions of regional/district plans.

Again, the strategies must be in accordance with the standards and timeframes of the department's delivery programs, as set out in guidance documents like the Local Housing Strategy Guideline, updated from time to time.

Delivery of local planning strategies

3. Council should give effect to an adopted local planning strategy (such as a local housing strategy) and any department approval requirements (including submission of implementation delivery plans) in accordance with the standards and timeframes identified by the department.

Explanation

Councils must not only prepare local planning strategies but deliver on the actions within them as well. Delivery would include council making the necessary amendments to their LEP, development control plan and development contributions plan, and committing the necessary finances to fund enabling infrastructure.

Through the department’s endorsement of local housing strategies, it may give additional requirements for the strategy that must be complied with, such as to submit an implementation delivery plan for evaluation to ensure the strategy’s actions are being properly delivered.

Consideration of state government policies and strategies

4. Council should consider State Environmental Planning Policies or other strategies and policies of the government, the minister or the department concerning planning and development matters when preparing an LSPS, local planning strategy or other plan provided for under the Act.

Explanation

This expectation is a 2021 order expectation that requires the consideration of all other SEPPs, strategies and policies of the government, minister and department regarding planning when undertaking their planning functions.

The department will use data gained through the NSW Planning Portal and other sources to monitor how councils are performing against the minister's expectations. Key expectations like DA determination averages will be publicly reported on a council league table dashboard on the department's website.

The department will look more closely at councils that are not meeting the expectations. Additional data and advice from the department's regional teams will form the basis of a second stage of analysis to determine whether the use of any intervention measures is warranted.

If a council does not meet the minister’s expectations, the department will monitor the council's performance more closely to see why the expectations are consistently not met.

If a council consistently does not meet the expectations, the department will consult the council to understand the reasons for the non-compliance.

Depending on the discussion with council, the department may offer different types of support to the council to help it meet the expectations, such as additional resources, training council staff and evaluating council processes and systems.

If council performance consistently does not meet the minister's expectations, is not improving and there are no mitigating circumstances, the council will be advised that the minister is considering intervention options unless performance improves. A performance improvement action plan will be developed with the council to ensure there are clear expectations and close monitoring (this could also be developed earlier linked to departmental support offered to councils).

If a council does not comply with its action plan and its performance does not improve, the minister can use powers under the EP&A Act to appoint a planning administrator or confer functions onto a Sydney district or regional planning panel.

The steps required for the minister to use these powers are set out in section 9.6 of the EP&A Act and involve the minister:

• notifying the council in writing of the proposed action and reasoning, and requesting the council to show cause why the action should not be taken
• considering any written submissions made by the council within 21 days
• obtaining the concurrence of the Minister for Local Government
• appointing a planning administrator or conferring functions on a Sydney district or regional planning panel by ministerial order (after considering the heads of consideration in the order).

The Local Government Act provides for a range of intervention options to ensure council performance is satisfactory across its broad range of functions. These include performance improvement orders, conducting public inquiries, installing advisors or financial controllers, and suspending or dismissing councillors and appointing administrators.

The department may work with the Office of Local Government and the Minister for Local Government to pursue intervention options under the Local Government Act, but this will generally be where council’s performance is also unsatisfactory in functions other than planning.

For addressing council's unsatisfactory performance in planning and development matters, the primary avenue the government will use to intervene and ensure adequate performance will be the powers under the EP&A Act, linked to the minister’s Statement of Expectations.

The NSW Government is providing $200 million of financial incentives for councils to help achieve housing targets and improve planning performance.

The department is investing $5.6 million to explore how artificial intelligence can support councils to reduce assessment timeframes for local development applications.

The Artificial Intelligence in NSW Planning project recognises the need for innovative solutions to support councils to enable efficiencies in the local DA process and support timely decision-making.

The department may also help councils that are not meeting expectations with support such as temporarily embedding staff in the council to assess DAs and implement process improvements to make their systems work more efficiently.

The department will continue to make amendments to the planning system and the NSW Planning Portal to make the DA process clearer and more efficient