DA2020/0661 - Determination process
Determination by independent Local Planning Panel
The large number of unique objections received for this highly contentious DA and the fact the subject land is managed by Council together necessitated its referral to the independent Northern Beaches Local Planning Panel (LPP) for determination. Information on the operation of local planning panels is detailed here on the NSW Dept of Planning and Environment website.
The Panel held two hearings into this application. The first hearing was held on Wed 7 October 2020 (minutes). This hearing was deferred and reconvened on Wednesday 14 October (minutes). The public meeting components of both hearings were teleconferenced and addressed by representatives of the applicant, Curl Curl Lagoon Friends, and the community.
Designated community representative - absence from Panel
Absence from first Panel hearing 7 Oct - The operational procedures for local planning panels mandate the inclusion of a designated community representative member at a panel hearing. However the community representative rostered for the first hearing was excluded from that hearing due to a "reasonably perceived" conflict of interest. No reasons or details were written on their declaration form. The Chair decided insufficient time was available to arrange an alternate unconflicted member for the first hearing and that the hearing would proceed in their absence as they believed a quorum would exist when the hearing commenced two days later.
The absence of the community representative was revealed only after the public meeting had commenced.
Absence from second Panel hearing 14 Oct - Once the decision to defer was made at the 7 Oct meeting the Chair then had 7 days to arrange for an alternate unconflicted community representative for the 14 Oct hearing. However the 14 Oct hearing proceeded without any community representative.
Importance of role - The Department of Planning & Environment explains the importance of the community representative's role on a Local Planning Panel thus:
"Is the panel required to take the community representative’s concerns into consideration prior to deciding on a matter?
Yes. The community representative is there to bring local knowledge and experience to the panel. Issues raised by the community representative will be an important consideration for the panel.
Panel members each have a vote, if a panel member has a dissenting view to the majority this view is to be formally documented and recorded in the panel’s reasons for its decision."
So, it is standard operational procedure and expectation for a community representative member to attend, participate in and inform Panel hearings and, of course, to cast their vote on the matter. And if they have a dissenting view, for that view to be duly minuted.
Importance of role in these circumstances - Given the extent of community interest in and response to (390 unique submissions) this highly contentious proposal to give public land set aside for community use over to commercial interests, avoiding the preventable absence of a community representative member on the panel would have been a wise move by the Chair.
Community representative conflicted as 'knew some objectors" - Lagoon Friends subsequently wrote to Council with our concerns about the conduct of the Panel in respect of the community representative absence. In their response Council explained that the previously undeclared "reasonably perceived conflict of interest" preventing the community representative from doing their job was simply that they "knew a number of the objectors".
Community representative deemed unnecessary as quorum existed - Council also provided us with Chair's advice that they felt it acceptable to run without a community representative because a quorum was expected to be present at the hearing, despite that being still two days away. Normally, a quorum cannot be declared for a meeting until the moment the Chair attempts to call the meeting to order.
Panel's statement of decision
At neither hearing did any Panel member find a need to ask any question of any community member who addressed the hearing, although the Optus representative was questioned. The Panel determined the matter in favour of the applicant, giving the reason for determination simply that "The Panel agrees generally with the assessment report." and offering the community no other reasoning, comment or statement on the matter.
Local Planning Panel - Community Representative:
Q1 Timely notification of a conflict of interest
Is it reasonable that a community representative Panel member selected to hear and determine a highly contentious development proposal under consideration for over three years should leave it until two days prior to the hearing to inform Chair they have just discovered they happen to personally know one or more of the 390 submission writers and so must exclude themselves from participating in the hearing, leaving Chair with insufficient time to organise a replacement?
Q2 Avoiding conflict of interest
Q2.1 How can it be that a community representative Panel member selected because of "their local knowledge and experience" can disqualify themselves from hearing a matter on the grounds that they "know some of the objectors" ?
Q2.2 Situations such as this will be common, are entirely foreseeable, and for this reason need to be dealt with as explained for the benefit of panel candidates in the Planning Panels Code Of Conduct. Does Chair agree the community representative's perceived conflict of interest was foreseeable?
Q3 Complete conflict of interest declaration form correctly
Q3.1 Should the community representative member when completing their Declaration of Interest form have detailed the reason for their perceived conflict of interest as required under the Code of Conduct and as other Panel members participating in this hearing did on their forms? Why did they not do this?
Q4 Arrange alternate community representative
Q4.1 What reasonable steps did Chair take to arrange an alternate community representative member for the Oct 7 hearing so as to ensure the Panel was properly informed by local knowledge and experience?
Q4.2 What reasonable steps did Chair take during the 7 day interval before Oct 14 to arrange an alternate community representative member for that hearing?
Q5 Quorum for Panel meeting
Q5.1 How was Chair able to satisfy themselves that a quorum existed for a hearing that was still two days away?
Local Planning Panel - Other
Q6 Site viewing
Q6.1 Was the site viewing referred to in minutes of Panel meeting 7 Oct 2020 an on-site inspection? Did Panel members at any time conduct an on-site inspection of the location of the proposed facility?
Q7 Nil elaboration of decision
Q7.1 For a proposal which had united the community and its federal, state, and local government representatives in opposition for more than 3 years and which will create a constant, every-day, prominent blotch on the Lagoon's natural environment for decades to come, is it reasonable to expect the community to accept this decision with no words of explanation from the Panel whatsoever, apart from "we generally agree with the assessment report"?