Merits Review in Planning in NSW

Merits Review in Planning in NSW

This report demonstrates that merits review is an essential part of the planning system and it is crucial that it continues to be recognised and facilitated in NSW.

In addition, there are clear benefits to allowing third party merits review in relation to major projects in NSW. These benefits relate to improving the consistency, quality and accountability of decision-making in environmental matters. In particular, merits review has facilitated the development of an environmental jurisprudence, enabled better outcomes through conditions, provides scrutiny of decisions and fosters natural justice and fairness. Better environmental and social outcomes and decisions based on ecologically sustainable development is the result.

Merits review has a long history in NSW, being a key element of planning reforms introduced in 1979 to a politicised and overly-complex system in drastic need for reform. The reforms sought to simplify and improve planning in NSW, as well as to depoliticise and take the heat out of decision-making. Fulsome public participation and the establishment of a specialist court – the Land and Environment Court – were key components in this enterprise.

Merits review for developers and third parties in the Land and Environment Court were, in turn, crucial elements in restoring the integrity and legitimacy of planning and decision-making for environmental matters.

Recent moves to limit third party merits review – particularly for resource projects - deprive the broader public of the benefits of good decision-making in environmental matters and serve to undermine the integrity of the planning system. The consistency, quality and accountability of decision-making by merits review undertaken by the Land and Environment Court contrasts with weaker decision-making, poorer outcomes and the inferior processes in public hearings held by the recently established Planning Assessment Commission.

The flow on result is that communities are disempowered and alienated by both the extinguishment of their merits review rights and the weakening of decision-making in environmental matters which, in turn, undermines the integrity of the NSW planning system.

2016 - Download PDF

Read more at our blog by EDO NSW CEO/Principal Solicitor Sue Higginson, The community’s right to participate: what happened to merits review?, 7 July 2016.