The information contained in this fact sheet is current as at 18 October 2006.

Topic 2 - Planning and Development

2.1. New South Wales Planning and Assessment Law

The principal law regulating land use in New South Wales is the Environmental Planning and Assessment Act 1979. The Act is administered by the Minister for Planning (the Minister).

2.1.6. Commissions of Inquiry

Commissions of Inquiry are public hearings which may be held in relation to a broad range of planning and development matters.

A Commission of Inquiry provides an assessment of the merits of an environmental dispute and allows an opportunity for the public to further participate in the environmental decision-making process.

Who calls an Inquiry?

An Inquiry will usually be called at the discretion of the Minister for Planning. The Director General can, in some circumstances, call a Commission of Inquiry.

In some cases where a local council is both the developer and consent authority and the development is controversial, the council may request the Minister to call an Inquiry to ensure that the development is subject to full public scrutiny. If a Commission of Inquiry is called, it will form part of the environmental assessment process for a development proposal.

Who conducts the Inquiry?

An Inquiry is conducted by one or more Commissioners of Inquiry. Inquiries are independent as Commissioners are not subject to the direction of the Minister or any other person in relation to the contents of their reports, findings and recommendations.

They are appointed by the Governor for up to five years. There are currently two full-time Commissioners. The Minister can also appoint other people with particular expertise to assist in an Inquiry.

Who does the Commissioner report to?

A Commissioner reports his or her findings and recommendations either to the Minister or the Director General, depending on who instigated the Inquiry. If the Inquiry relates to a particular development application, the Minister must send the Commissioner's report to the relevant consent authority (such as a local council) and to any public authority whose concurrence may be required. Reports must be made public.

Are an Inquiry's recommendations binding?

An Inquiry's recommendations are not legally binding. They are only advisory. The Minister, local council or determining authority can accept, reject or modify the recommendations, but must take them into consideration before making their final decision.

When may a Commission of Inquiry be called?

The Minister can call Inquiries on a wide range of matters. These matters are set out in section 119 of the Environmental Planning and Assessment Act 1979 and include:

matters relating to the administration and implementation of the Environmental Planning and Assessment Act and any relevant Environmental Planning Instruments; and
the environmental aspects of an application for the approval of a major project or concept plan under Part 3A or a proposed activity under Part 5 of the Environmental Planning and Assessment Act which is likely to significantly affect the environment.

Inquiries into proposed developments

Inquiries in relation to a proposed development can be called at any time at the Minister's discretion.

Activities by public authorities

Activities referred to in Part 5 of the Environmental Planning and Assessment Act can also be the subject of an Inquiry. These activities are usually large public works which require an Environmental Impact Statement. The Minister can call this kind of Inquiry at his or her discretion, for example, in response to requests from the public or other Ministers.

Local council Inquiries

Councils may request that an Inquiry be held in relation to major local projects or when a conflict exists because the council is both the developer and the consent authority.

Inquiries and public hearings into zoning proposals and regional and local environmental plans

The Director General of the Department of Planning may direct that an Inquiry be held about a draft Regional Environmental Plan.

If a local council exhibits a draft Local Environmental Plan and submissions have been received, a public hearing must be called when:

a person who made a submission requests a hearing; and
the council believes the issues raised are significant enough to be the subject of a hearing.

These hearings are conducted independently by the Commissioners.

Inquiries under the Heritage Act 1977

Commissioners can be directed by the Minister to conduct public hearings or Inquiries under the Heritage Act 1977.

The Minister may appoint a Commissioner to inquire into whether to list or remove an item on the State Heritage Register.

An Inquiry can also be held in response to an appeal against certain decisions of the NSW Heritage Council.

Who can speak at an Inquiry?

If an individual or group wishes to speak at an Inquiry, they will usually require the permission of the Commission, unless they are the proponent of the development. If you are speaking with the Commissioner's permission, you must ensure that what you want to say is relevant to the subject of the Inquiry.

People can speak on their own behalf or as a representative of a group. You don't need legal representation but you can be legally represented if you wish. The Commission can also summon a person to appear before an Inquiry.

Is a written submission necessary?

In order to be heard, a written submission setting out the information that the individual or group wishes the Commission to consider must be lodged by the date specified in the public notice. The information can relate to the subject of the Inquiry generally or to specific aspects of it.

Before writing a submission, it is important to inspect all relevant documents, including the development application and any Environmental Impact Statement. These documents will be available at the office of the Commissioners of Inquiry, the local council or other local venue.

Lodging a written submission registers the individual or group as a party to the Inquiry. In practice, a request to be heard at the Inquiry is lodged with the written submission. An estimate of the time that the individual or group requires to address the Inquiry should be included.

If changes to the development project are proposed, everyone planning to appear at the Inquiry should be given an opportunity to present additional information relating to the changes. Once submissions are closed, the primary submissions of all parties may be inspected. It is then possible to submit questions or requests for further information arising out of the primary submissions.

What is the procedure at a Commission of Inquiry?

The Commissioner decides what procedure will be followed at an Inquiry. However, section 120 of the Environmental Planning and Assessment Act sets out certain rules which must be followed for Inquiries under that Act, including the following:

Public hearings. Inquiries must be held in public unless the subject is confidential. The Commissioner can direct that part or all of the Inquiry take place in private or can restrict publication of material presented to it, if he or she is satisfied that it is in the public interest to do so. Decisions regarding confidentiality are at the discretion of the Commissioner.

Public notice. The Commissioner must give reasonable notice of his or her intention to hold an Inquiry, the subject and the time and place of the Inquiry. The notice should give everyone who intends to participate in the Inquiry a reasonable time to prepare their case - usually at least four weeks. Notice of an inquiry will often appear in local and State-wide newspapers, depending on the type of Inquiry. Letters may also be sent to known interested parties.

Evidence. Evidence must be given in public, unless it is confidential, and is not usually required to be given under oath. A Commissioner is not bound by the rules of evidence, but is still required to comply with the rules of natural justice. This means that the hearing must not be biased and must give whoever is appearing before it a fair opportunity to present their case. The Commissioner has the power to summon a person to appear as a witness and to produce any documents as required.

Is the Land and Environment Court different to a Commission of Inquiry?

Yes. A Commission of Inquiry considers an issue before a final decision is made by the Minister or a local council. It determines the facts of an issue and is not bound by the rules of evidence. The Land and Environment Court usually looks at a decision after it has been made, or decides a development application if a local council hasn't made a decision within the time required by law.

Does a Commission of Inquiry limit any other avenues of appeal?

Yes. If an Inquiry is held in relation to an application under Part 3A of the Environmental Planning and Assessment Act for approval of a major project or concept plan, then both the developer and any objectors lose their right to bring a merits appeal against the final decision of the consent authority.

The holding of an Inquiry does not otherwise prohibit an appeal for judicial review being commenced in the Land and Environment Court if the decision of the consent authority was unreasonable or the decision-making process flawed.

If an appeal is made to a public authority or body, such as the Land and Environment Court, in relation to the subject considered by a Commission of Inquiry, that authority or body shall consider and take into account the findings and recommendations of the Inquiry and any advice given by the Minister. The findings of the Inquiry itself, however, are not able to be appealed.

Further Help and Information

The website for the Office of the Commissioners of Inquiry contains information about past and current Inquiries, the annual reports and a useful free handbook entitled Commissions of Inquiry for Environment and Planning: How they Work: www.coi.nsw.gov.au.

The above publications are also available for free from the Office of the Commissioners of Inquiry of Environment and Planning: Level 13, Thakral House, 301 George St, Sydney. (02) 9299 2904.