Many applications for planning permits do not make it to the Planning Authority. In fact, they may be submitted, decided and acted upon without any public announcement of the decision or publication of any details of the development,
An application can be decided (strictly speaking “determined”) by someone on Council staff if their position has been formally granted the authority to determine the application.
Some Council staff have the authority to decide certain types of applications. They can do that because the General Manager of Council has given their position a delegation under section 64 of the Local Government Act 1993. You can read the delegations as at July 2020 here.
As a general rule, an application will only be passed to the Planning Authority if no staff member has the authority to determine it. If you take a look at a typical agenda item for the Planning Authority you will see a short item entitled “Reason for GPA” which explains precisely why no-one in the Planning Services group could determine the application.
What I would like to address in this post is not delegation per se. It is after all often more efficient to have decisions made by qualified staff were practicable.
But the public invisibility of that process and the absence of accountability for decisions made under delegation concern me greatly.
INVISIBILITY
The situation is Glenorchy lacks transparency. The GCC Coordinator for Planning Services wrote earlier this year that “As there is no legislative requirement to do so Council does not provide public notice of applications that have been determined under delegation nor does it maintain a public register of applications determined under delegation.”
At least three other Councils publish basic details – Hobart City Council (search page for recent approvals only), Meander Valley Council (recent approvals only) and Dorset Council (recent approvals only). Devonport City Council goes further, providing in the agenda for each Planning Authority Committee meeting a list of all approvals since the previous meeting (download a sample).
Even though no legislation compels Council to provide the public with any data about applications determined under delegation, there is clearly no legislation prohibiting it. Council admits that (see Appendix 1 below).
In any case, it would be truly disappointing if a Council took actions only if compelled by law. Much legislation mandates standard or minimal types of behaviour. Any Council which did not explore all legal service improvements would label itself as lacking imagination or an interest in innovation.
ACCOUNTABILITY
There are also potentially serious issues with accountability. The staff determining a planning application under delegation — regardless of their knowledge, regardless of their competence, regardless of their desire to make the correct determination — have little or no accountability for their determination.
Staff must write a report for the Planning Authority if the application goes there, but any report written for a determination by delegation will not see the light of day. And if public does not know the application existed, they cannot ask questions about it.
I suspect the applicant may have appeal rights to RMPAT for example, but no member of the public has any opportunity to have their say.
Two types of decisions are relevant – the initial decision that a DA can be determined under delegation, and the actual determination of the DA.
Delegation effectively eliminates public engagement.
THE PRIVACY FURPHY
On a couple of occasions Council staff, most recently the Director of Planning, have suggested there are “privacy issues” to consider. The most substantial writing on this appears in the agenda of the 25/1/2021 Council meeting in an answer to a Question on Notice. It seems to indicate that there are two classes of DA – those with privacy and those without, and blames legislation for that situation.
Are they suggesting that DAs determined under delegation demand a higher degree of confidentiality than those determined by the Planning Authority or RMPAT?
Are they suggesting that having your DA determined under delegation provides you with a legitimate mechanism to keep your DA secret?
Surely all DAs have the same privacy settings.
OPEN THE BOOKS NOW
The importance of transparency and accountability is unaffected by the size or cost of the proposed development. It is impossible to see any legal or ethical justification for maintaining secrecy over the determination of planning applications under delegation.
The Council’s Planning Application form which can be found here on the Council’s own web site contains a section “Applicant’s Declaration” in which it says
By providing Council with the plans and documents attached to this application (“Documents”), I:
▪ authorise Council to copy the Documents, attach copies to Agendas for any relevant Council meetings and release copies to the public; …
So applicants clearly regard the application as public. This makes Council’s arguments seem simply obstructive.
As a matter of public interest, the Glenorchy City Council should without delay implement the same level of reporting as the Devonport City Council for determinations under delegation.
Appendix 1 – response of Council to question on notice 25/1/2021
[Note that the information requested through the question for each delegated determination comprises only four items – application number, location of development, development type, and date of approval.]
There are provisions in State legislation for making the public aware of applications for discretionary planning permits by requiring that applications are publicly advertised. Provisions also allow representations to be made on these applications to facilitate public participation in the assessment process.
Notification of the granting of a planning permit is only required to be given to persons who made a representation during the advertising period. This is to enable those persons to consider whether they wish to appeal the granting of the permit.
State legislation does not require Councils to publish lists of permits that have been granted on their websites or in meeting agendas. While some Tasmanian Councils do choose to provide information on permits approved under delegation on their websites and/or in Council or committee agendas, the potential benefit that arises from increasing community awareness of what permits have been granted must be weighed against the fact that, aside from persons who made a representation during the advertising period, the public have no ability to challenge or seek changes to a permit once it has been granted. Publishing a list of planning permits that have been granted would potentially raise unrealistic expectations on the part of some members of the public that they could initiate changes to a permit. It would also make public information about properties that is currently known only to the landowner, their representatives and Council, without the consent of the landowner.
Council currently meets all legislative requirements related to the advertising of applications for discretionary planning permits and, in addition, provides copies of these applications on its website for the duration of the advertising period. Further, Council will, on request and subject to receiving the consent of the owner of a property to do so, provide details or copies of a planning permit on a particular property to members of the public. Should State legislation change in the future to require Councils to publish information on permits that have been granted, Council will of course comply with that requirement.
In response to the three questions:
- Council does not intend to provide a list of permits granted under delegation for the 2020 calendar year, as it is not the practice of Council to provide members of the public with information about private properties that is not required to be made public.
- Council does not intend to publish a list of permits granted under delegation in the agenda of the Glenorchy Planning Authority as there is no statutory requirement to do so and doing so would make public information about properties that is currently known only to the landowner, their representatives and Council.
- Council is unaware of any specific legal impediment to publishing a list of
permits granted under delegation, although any release of such information is subject to the provisions of the Right to Information Act 2009 and applicable privacy legislation. In providing copies of advertised applications on its website, Council is merely facilitating public access to information that is already required by legislation to be made available to the public.
Glenorchy City Observer 
May 13, 2020.
I contacted the Coordinator Planning Services at GCC asking the following question
“I understand that Planning Services have delegations to determine certain planning applications.
… Is there any public announcement or record of those determinations? If not, why not? If yes, where would I find them?”
On July 7 I received a reply starting with an apology for the delay and continuing on to provide this answer:
“… as there is no legislative requirement to do so Council does not provide public notice of applications that have been determined under delegation nor does it maintain a public register of applications determined under delegation. It is noted that of all Tasmanian Councils, only the Hobart City Council provides an ability to search for basic information on its website on all planning applications that have been determined (including those determined under delegation) and that this is limited to those determined in the current month and the previous month.”
January 4, 2021. I emailed a question without notice to GCC with subject “Data about planning applications determined under delegation”.
QUESTION
In a reply to a previous query, the Council’s Coordinator Planning Services wrote to me – “… as there is no legislative requirement to do so, Council does not provide public notice of applications that have been determined under delegation nor does it maintain a public register of applications determined under delegation. ”
Although, as he said, there is no legal requirement to share any data regarding applications determined under delegation, I’ve since learnt that at least four other Tasmanian councils (Hobart, Meander Valley, Dorset and Devonport) publish basic details. Devonport City Council goes further, providing in the agenda for each Planning Authority Committee meeting a list of all approvals since the previous meeting.
1. Can I be provided a list of the following data in the shown format (used by Devonport) for all applications determined under delegation in the calendar year 2020?
Column 1: Application No “PA2020.0108”
Column 2: Location “45 Valley Road, Devonport”
Column 3: Development “Residential (multiple dwellings x 2)”
Column 4: Approval Date “18/09/2020”
2. In the interests of transparency, will Council consider incorporating this data in the agenda for each Planning Authority meeting as Devonport does?
3. Council makes limited information in its website about applications currently open for public consultation. Is Council aware of any legal impediment to sharing that same information for applications determined under delegation?
ANSWER (APPEARING IN THE AGENDA OF THE JANUARY 2021 OPEN COUNCIL MEETING)
There are provisions in State legislation for making the public aware of applications for discretionary planning permits by requiring that applications are publicly advertised. Provisions also allow representations to be made on these applications to facilitate public participation in the assessment process.
Notification of the granting of a planning permit is only required to be given to persons who made a representation during the advertising period. This is to enable those persons to consider whether they wish to appeal the granting of the permit.
State legislation does not require Councils to publish lists of permits that have been granted on their websites or in meeting agendas. While some Tasmanian Councils do choose to provide information on permits approved under delegation on their websites and/or in Council or committee agendas, the potential benefit that arises from increasing community awareness of what permits have been granted must be weighed against the fact that, aside from persons who made a representation during the advertising period, the public have no ability to challenge or seek changes to a permit once it has been granted. Publishing a list of planning permits that have been granted would potentially raise unrealistic expectations on the part of some members of the public that they could initiate changes to a permit. It would also make public information about properties that is currently known only to the landowner, their representatives and Council, without the consent of the landowner.
Council currently meets all legislative requirements related to the advertising of applications for discretionary planning permits and, in addition, provides copies of these applications on its website for the duration of the advertising period. Further, Council will, on request and subject to receiving the consent of the owner of a property to do so, provide details or copies of a planning permit on a particular property to members of the public. Should State legislation change in the future to require Councils to publish information on permits that have been granted, Council will of course comply with that requirement.In response to the three questions:
1. Council does not intend to provide a list of permits granted under delegation for the 2020 calendar year, as it is not the practice of Council to provide members of the public with information about private properties that is not required to be made public.
2. Council does not intend to publish a list of permits granted under delegation in the agenda of the Glenorchy Planning Authority as there is no statutory requirement to do so and doing so would make public information about properties that is currently known only to the landowner, their representatives and Council.
3. Council is unaware of any specific legal impediment to publishing a list of permits granted under delegation, although any release of such information is subject to the provisions of the Right to Information Act 2009 and applicable privacy legislation. In providing copies of advertised applications on its website, Council is merely facilitating public access to information that is already required by legislation to be made available to the public.
THE END
March 2, 2021. Following the rejection of my request for a list of basic information for DAs determined under delegation, I submitted an RTI requesting the following:
“I request the following data for all development applications determined in the 2020 calendar year by Council staff under delegation.
The data I request is that which the Devonport City Council incorporates in the agenda for each meeting of their Planning Authority Committee.
Although I believe much more information should be available, all I ask for at this stage for each DA is application number, location, description of DA, and date of approval. Here is a sample from the Devonport report.
Application No. – PA2020.0108
Location – 45 Valley Road, Devonport
Development – Residential (multiple dwellings x 2)
Approval Date – 18/09/2020
I would prefer the data in electronic form in a Microsoft Excel spreadsheet.”
THE END.
March 15, 2021.
With no fuss whatsoever, I received a brief but polite letter simply indicating that the requested information is attached. No statement that the RTI has been approved. Simply referring to an attached Microsoft Excel spreadsheet containing all the data I’d requested.. Use this link ( https://eddysteenbergen.files.wordpress.com/2021/05/development-applications-determined-under-delegation-2020.xlsx ) to open or download it.
I responded thanking GCC for the data and asking these questions. Here are the questions and answers.
Q1. Since there doesn’t seem to be any legal or procedural problems with providing me with the data, can I request Council to do what Devonport City Council does? i.e. incorporate in the agenda of each Planning Authority meeting a list of DAs approved under delegation since the last Planning Authority meeting? It would simply be information to be noted by the meeting but would I think interest many people. Could you please pass this request on to someone who can consider it?
A1. I have passed this request to our Director Strategy & Development and Manager Development for consideration. Once I have received their response I will provide you an update.
Q2. This RTI request seemed rather uncontroversial. Does that mean I can make further requests of this type of data in future without using RTI?
A2. In certain circumstances, yes. The Right to Information Act defines the following types of information disclosures:
Active Disclosure – The disclosure of information by Council in response to a request where the Principal Officer decides to release information outside of Division 2 of Part 2 of the Act (requiring a formal application for assessed disclosure).
Assessed Disclosure – A disclosure by Council in response to an application and following a decision by the Principal Officer, in accordance with s. 13 of the Act.
Exempt information – Is information that is exempt by virtue of a provision of Part 3 of the Act.
Required Disclosure – The disclosure of information by Council where the disclosure is required by to be published by a statute, regulation or other enforceable contract entered into by the Council.
Routine Disclosure – A proactive disclosure of information where Council decides it may be of interest to the public and where this disclosure is not an active, assessed or required disclosure under the Act.
Given this, your recent request of (date) asked for information that Council held in a variety of sources and, as such, required Council officers to extract the information and produce it in the spreadsheet to send to you. As such it fell into the definition of assessed disclosure. If, in future requests, the information you ask for is already available (either on Council’s website or agendas / minutes, etc) then upon receipt of your RTI request Council would consider this information to be a routine disclosure and would refund you your RTI fee paid.
END OF A2.
Council needed a reminder before responding (refer to A1) that “Whilst Council appreciate your suggestion, at this stage we do not have the resources to undertake this additional reporting. We will endeavour to reconsider this suggestion if and when the number of development applications we are processing reaches more manageable levels.”
Finally (for now), I intend to request the data for 2021 in January and I do not expect to have to pay a fee. I find it absurd to have to pay for data that should be available with a simple query for fundamental data items from a Council software system supporting the core business of development application management.
THE END.