Keeping the Gate Open for Pre-Gateway Reviews

An analysis of the Pre-Gateway Review Process in NSW

On 18 June, 2019, the NSW Minister for Planning and Public Spaces introduced the Planning Amendment Bill 2019 into the NSW Legislative Assembly. The Bill aims ‘to complete the good work of the 2017 amending Act and continue to improve the operation of the planning system by making it simpler and easier to understand.’ The Opposition sought a further amendment when the Bill was introduced into the Legislative Council in August, which seeks to limit the circumstances in which a proponent can request a Pre-Gateway Review of a rezoning application. The Opposition has stated that this will ‘shut the developer’s backdoor into the planning system and treat communities and local councils with the respect they deserve’.

Given the significant implications that removal of the Pre-Gateway Review process will have for planning and development in NSW, it is worth examining the numbers, nature and status of rezoning applications for which reviews have been lodged since the mechanism was introduced into the planning system in 2012.

The Review process allows proponents to request an independent review of a rezoning application where:

  • a council has notified them that it does not support their plans; or
  • a council has failed to indicate its support 90 days after the proponent has submitted a request.

The Pre-Gateway Review process is set out in the flowchart below.

Figure 1 Source: NSW Department of Planning Industry and Environment

The above five step process provides a pathway for applicants to seek an objective review of a rezoning application outside of local government decision making. The review is undertaken by an independent panel and provides a merit-based review of whether the rezoning should proceed to public exhibition. If a proposal proceeds through the Pre-Gateway Review, it means that it will be exhibited for public comment, it doesn’t mean that rezoning will necessarily proceed as proposed.

A review of the rezoning data for NSW shows that 223 Pre-Gateway Review applications have been lodged since the process was first introduced. As shown in the chart below, 37% (ie 82 applications) of these have received support to proceed to public exhibition, and 40% of those exhibited (ie 33 applications) have been finalised.

Figure 2: Prepared by Elton Consulting based on the NSW Government Rezoning Review Tracking System

Community views are an important consideration in any planning decision, and should always be taken into account as part of the stakeholder engagement process. Equally, community concern should not necessarily preclude a legitimate rezoning application from proceeding to the exhibition phase.

Had the review process not been in place, these 82 rezoning applications may never have been made publicly available, thereby removing a level of transparency in the planning system. This supports the ongoing need for an unbiased review system.

The map below shows the number of reviews lodged in each relevant local government area across metropolitan Sydney since the review mechanisms were introduced. A further analysis of this data would be useful to see if there are any discernible patterns (i.e. where they occur and where they are permitted to proceed).

The Pre-Gateway Review process is a costly and time consuming process for all those involved. Our analysis shows that the Planning Commission/Panels took an average of 217 days to provide a positive determination for a Pre-Gateway Review application. This timeframe is in addition to the standard timeframes for rezoning proposals – including the Pre-Gateway Review request, exhibition, assessment and finalisation periods.

Given the level of uncertainty, extended timeframes and costs associated with the Pre-Gateway Review system, it would seem not to be a process that a proponent would lightly enter, and doesn’t suggest this gateway is a ‘backdoor’ to fast track planning decisions. The purpose of the process is to allow for a transparent, public exhibition of a proposal that might not otherwise be made publicly available – and it appears to be serving that objective. Whilst tweaks to the review process might be worth contemplating, the process itself provides an appropriate decision making framework to the benefit of the NSW planning system as a whole and should not be removed from the statute.