development assessment panel procedures manual - dap members alias

July 2011

Under thePlanning and Development (Development Assessment Panels) Regulations 2011

Development Assessment Panel Procedures Manual - DAP Members

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This document has been published by the Department of Planning. Any representation, statement, opinion or advice expressed or implied in this publication is made in good faith and on the basis that the government, its employees and agents are not liable for any damage or loss whatsoever which may occur as a result of action taken or not taken, as the case may be, in respect of any representation, statement, opinion or advice referred to herein. Professional advice should be obtained before applying the information contained in this document to particular circumstances.

© State of Western Australia

Published by theDepartment of Planning140 William StreetPerth WA 6000

Locked Bag 2506Perth WA 6001

Published July 2011

website: www.planning.wa.gov.auemail: [email protected]

tel: 08 655 19000fax: 08 655 19001TTY: 08 655 19007infoline: 1800 626 477

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Table of contents

1) Preliminary Section ....................................................................... 1a) Purpose of manual . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1b) Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1c) Related documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1d) DAP website . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1e) DAP Secretariat . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

Definitions ................................................................................................ 2

Acronyms .................................................................................................. 3

2) Overview of DAPs .......................................................................... 4a) Legislative framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4b) What is a DAP legally? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4c) Purpose and objectives of DAPs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4d) Types of DAPs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

i) LDAPs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4ii) JDAPs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

e) DAP applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5i) Mandatory DAP applications . . . . . . . . . . . . . . . . . . . . . . . . . . .5ii) Optional DAP applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5iii) Applications delegated to a DAP . . . . . . . . . . . . . . . . . . . . . . . .5iv) Amending or cancelling DAP development approval . . . . . . .6v) Excluded applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

3) DAP membership .......................................................................... 9a) Types of panel membership and quorum . . . . . . . . . . . . . . . . . . . . . .9

i) Specialist DAP members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9ii) Local DAP members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

b) DAP members appointment / reappointment process . . . . . . . . . .10i) Process for specialist members . . . . . . . . . . . . . . . . . . . . . . . .10ii) Process for local members . . . . . . . . . . . . . . . . . . . . . . . . . . . .11iii) Alternate members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11

c) DAP member training . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12i) What the training will involve . . . . . . . . . . . . . . . . . . . . . . . . .12

d) Leave of absence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12e) DAP member vacancies, removal and resignation . . . . . . . . . . . . . .12

i) Casual vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12ii) Removal from a DAP appointment . . . . . . . . . . . . . . . . . . . . .13iii) Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13iv) Replacement of DAP members . . . . . . . . . . . . . . . . . . . . . . . . .13

f) DAP Member remuneration and reimbursement . . . . . . . . . . . . . . .13i) Remuneration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13ii) Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14

4) DAP meetings...............................................................................15a) Purpose of DAP meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15b) Pre-meeting preparation for members . . . . . . . . . . . . . . . . . . . . . . .15

i) The Responsible Authority Report(s) . . . . . . . . . . . . . . . . . . . .15ii) Directing the Responsible Authority to provide

further information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18iii) Site visits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18iv) Conflict of interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19

c) Meeting dates, agenda and venue . . . . . . . . . . . . . . . . . . . . . . . . . . .19d) Request to defer consideration of DAP application . . . . . . . . . . . . .20e) Responsible Authority’s representative at meeting and presentation

requests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20i) Local government presence and general invitees . . . . . . . . .20ii) Presentation requests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20

f) General procedure at meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21i) Standing Orders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21

g) Post-meeting process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22i) Recording meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22ii) Issuing Notice of Determination . . . . . . . . . . . . . . . . . . . . . . . .22iii) Enforcement of development approval . . . . . . . . . . . . . . . . . .22iv) Appeals to the SAT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24

5) Responsibilities of presiding members ....................................... 25a) Standing Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25b) Regulation 13(1) directions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25c) Extension of time requests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25d) Conduct at meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26

i) Before the meeting – Presiding Member’s role . . . . . . . . . . .26ii) At the DAP meeting – Presiding Member’s role . . . . . . . . . .26

e) Public comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27f) Address breaches of the Code of Conduct and Misconduct . . . . . .27g) Attend SAT hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27h) Deputy Presiding Member . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27

6) Code of Conduct ...........................................................................28a) Personal behaviour . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28b) Communication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28c) Conflict of interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28d) Gifts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28e) Breaches of the Code of Conduct and misconduct . . . . . . . . . . . . . .29

7) Complaints handling ....................................................................30a) Procedure for submission and handling of complaints . . . . . . . . . .30

i) Lodging complaints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30ii) Investigation by the Department . . . . . . . . . . . . . . . . . . . . . . .30iii) Alleged misconduct – investigation by Corruption and Crime

Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30b) Consequences of misconduct / contravention of Code . . . . . . . . . .31

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Appendices

Appendix A - DAP Groupings (LDAPs & JDAPs). . . . . . . . . . . . . . . . . . . . . . . . . . . .32Appendix B - Leave of Absence Letter Template . . . . . . . . . . . . . . . . . . . . . . . . . . .34Appendix C - Premier’s Circular 2010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35Appendix D - Public Sector Commissioner’s Circular 2009-20 . . . . . . . . . . . . . . .36Appendix E - Reimbursement of Travel Expenses Form . . . . . . . . . . . . . . . . . . . . .38Appendix F - Responsible Authority Report Template . . . . . . . . . . . . . . . . . . . . . .41Appendix G - Extension of Time Request Template . . . . . . . . . . . . . . . . . . . . . . . 44 Appendix H - Request for Further Information Letter Template . . . . . . . . . . . . . .46 Appendix I - Applicant’s Notification of Responsible Authority Report

and DAP Meeting Date Template . . . . . . . . . . . . . . . . . . . . . . . . . . . .47Appendix J - Declaration of Interest Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .48Appendix K - Extension of Time Request (Deferral of Application) Template . . .50 Appendix L - DAP Presentation Request Template . . . . . . . . . . . . . . . . . . . . . . . . .51Appendix M - DAP Standing Orders 2011 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52Appendix N - DAP Code of Conduct 2011. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52Appendix O - DAP Meeting Agenda Template . . . . . . . . . . . . . . . . . . . . . . . . . . . .53 Appendix P - Gift Notification Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .55

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1. Preliminary Section

a) Purpose of manual

The purpose of this manual is to explain the roles and responsibilities of Development Assessment Panel (DAP) members, and related administrative processes.

This procedures manual provides:

a) an explanation of what DAPs are and how they are established in legislation;

b) the role and responsibilities of DAP members; and

c) procedures to assist DAP members in administering and processing DAP applications.

This procedures manual may be periodically reviewed and updates provided on the DAP website http://daps.planning.wa.gov.au

b) Interpretation

Unless stated otherwise, reference to DAP members in this procedures manual collectively includes specialist members, local members, and alternate specialist and local members.

A reference to a ‘day’ means ordinary days, which include Saturdays, Sundays and public holidays, as stipulated in section 61 of the Interpretation Act 1984. If the due date falls on a Saturday, Sunday or public holiday, the due date is extended to the next working day.

A reference to time calculated in ‘hours’ does not include any hours occurring on a Saturday, Sunday or a public holiday.

c) Related documents

The Planning and Development (Development Assessment Panels) Regulations 2011 (DAP Regulations) provide for the constitution, operation, and administration of DAPs. Planning Bulletin 106 provides a summary of the DAP Regulations requirements.

This procedures manual is designed as an aid for local government to understand its obligations under the DAP

Regulations. References to specific sections of the DAP Regulations are made throughout this document; and it is recommended that it is read together with a copy of the DAP Regulations.

d) DAP website

A DAP website has been developed to provide a ‘one-stop-shop’ to assist applicants, local government and Department of Planning staff in understanding the DAP’s role in the current planning assessment framework. The website can be found at http://daps.planning.wa.gov.au

The website contains information on panel locations, panel members, meeting agendas and minutes, DAP procedures, frequently asked questions and answers, other relevant documents and media releases. The website will be maintained by the DAP Secretariat, which will post applications, agendas and minutes online as required.

A copy of the DAP Regulations, DAP Standing Orders, Code of Conduct and other policy manuals can be found under the section entitled ‘Publications’ on the DAP website.

e) DAP Secretariat

The DAP Regulations specify that the chief executive officer (Director General) must provide departmental officers to administer DAPs. These staff will form what is called the DAP Secretariat. This Secretariat will act as the liaison between DAP members and various other parties such as local government, the WAPC and applicants.

The DAP Secretariat will be responsible for preparing meeting agendas, organising the time, date and location of meetings, preparing acknowledgement and notification letters, updating the DAP website, administering DAP fees and preparing the DAP annual report.

In addition, the DAP Secretariat will circulate DAP applications to members, process leave of absence requests, process regulation 13(1) directions from DAP members, make travel and accommodation bookings for DAP members when required, process mileage claims, and handle general DAP related enquiries including those relating to conflicts of interest and receiving gifts. DAP members should contact the DAP Secretariat at the first instance if they have any enquiries.

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Definitions

This section addresses the definitions most commonly used in the manual and as contained within section (3) of the DAP Regulations:

Administrative officer, in relation to a DAP, means the administrative officer who provides services to the DAP under regulation 49;

Alternate member means a person appointed under regulation 28;

Applicant means a person who makes a DAP application;

DAP application means –

(a) a development application prescribed under regulation 5; or

(b) a development application prescribed under regulation 6 in respect of which the applicant has made an election under regulation 7;

DAP member means –

(a) a specialist member or local government member of a LDAP; or

(b) a specialist member or local government member of a JDAP,

and includes an alternate member;

DAP Regulations means the Planning and Development (Development Assessment Panels) Regulations 2011;

DAP website has the meaning given in regulation 51;

Department or department means the department of the Public Service principally assisting the Minister in the administration of the Act (in this case the Department of Planning);

deputy Presiding Member, in relation to a DAP, means the person appointed as deputy Presiding Member of the DAP under regulation 27(1)(b);

Director General means the chief executive officer of the Department;

excluded development application means a development application for approval of –

(a) construction of –

(i) a single house and any associated carport, patio, outbuilding and incidental development;

(ii) less than 10 grouped dwellings and any associated carport, patio, outbuilding and incidental development;

(iii) less than 10 multiple dwellings and any associated carport, patio, outbuilding and incidental development;

or

(b) development in an improvement scheme area; or

(c) development by a local government or the Commission;

or

(d) development in a district for which –

(i) a DAP is not established at the time the application is made; or

(ii) a DAP has been established for less than 60 days at the time the application is made;

local government member means –

(a) in relation to a LDAP, a person appointed as a member of the LDAP under regulation 23(1)(a);

(b) in relation to a JDAP, a person included on the local government register;

local government register means the register maintained under regulation 26;

member, in relation to the council of a local government, has the meaning given by the Local Government Act 1995 section 1.4;

planning instrument has the meaning given in section 171A(1) of the Act;

Presiding Member, in relation to a DAP, means the person appointed as Presiding Member of the DAP under regulation 27(1)(a);

R-Codes means the State Planning Policy 3.1 Residential Design Codes (Variation 1) made under section 26 of the Act, including any amendments made to the policy;

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specialist member means –

(a) in relation to a LDAP, a person appointed as a member of the LDAP under regulation 23(1)(b);

(b) in relation to a JDAP, a person appointed as a member of the JDAP under regulation 25(1)(b).

The following terms have the meaning given to them in the R-Codes –

carport

dwelling

grouped dwelling

incidental development

multiple dwelling

outbuilding

patio

single house

Note: The terms DAP, JDAP, LDAP and responsible authority and other terms defined in the Planning and Development Act 2005 section 4(1) have the same respective meanings as in that provision.

Acronyms

Act Planning and Development Act 2005 (as amended)

DAP Development Assessment Panel

JDAP Joint Development Assessment Panel

LDAP Local Development Assessment Panel

SAT State Administrative Tribunal

WAPC Western Australian Planning Commission

WALGA Western Australian Local Governments Association

PCA Property Council of Australia

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2. Overview of DAPs

a) Legislative framework

The Approvals and Related Reforms (No. 4) (Planning) Bill 2010 was passed by Parliament on 10 August 2010. The Bill amended the Planning and Development Act 2005 (as amended) (Act) to introduce a range of new planning reforms to streamline the approval process. Part 3 of the Act provides the enabling powers required to establish DAPs in Western Australia.

Sections 171A to F of the Act provides for the development of regulations that specify the powers and operations of DAPs. The DAP Regulations 2011 make provisions for the operation, constitution and administration of DAPs. These were gazetted on 24 March 2011.

On 2 May 2011, by publication of a Ministerial Order, the Minister for Planning established 15 DAPs that cover every local government in Western Australia.

DAPs are independent entities answerable to the Minister and do not sit under the Department or the WAPC.

All DAPs determine applications as if they are the responsible authority under the relevant planning instrument, such as the local planning scheme or region planning scheme, where applicable. Under the DAP Regulations, any application which qualifies as one that can be determined by a DAP cannot be determined by local government or the WAPC.

b) What is a DAP legally?

A DAP is an entity brought into existence by a Ministerial order under section 171C of the Act and constituted from time to time by a meeting of sufficient members to form a quorum. A DAP’s primary function is to decide DAP applications by resolution.

A DAP is, therefore, not a separate legal entity with the capacity to act in its own name.

It is unlike a company or statutory body, which enjoys a separate legal personality to that of its shareholders, employees and directors, and has the capacity to take action or respond to matters in its own name. Administratively, a DAP functions by certain individuals

or organisations carrying out tasks or responsibilities on behalf of the DAP. DAP members report to the Minister and are not employed by the Department or the WAPC.

c) Purpose and objectives of DAPs

The key function of a DAP is to determine significant applications for development approval.

The DAP model has been introduced to achieve the following:

• streamlinethedeterminationprocessforparticular types of development applications by eliminating the requirement for dual approval under both the local and region schemes;

• involveindependenttechnicalexpertsinthedetermination process; and

• encourageanappropriatebalancebetweenindependent professional advice and local representation in decision-making for significant projects.

The DAP model is designed to strengthen the approval process which will in turn contribute towards the growth and development of Western Australia as a whole.

d) Types of DAPs

There are two different types of DAPs: Local Development Assessment Panels (LDAPs), and Joint Development Assessment Panels (JDAPs). The Minister established 15 DAPs under section 171C of the Act (as amended) for each local government area, by the publication of an Order in the Gazette on 29 April 2011. Pursuant to the Order these DAPs were officially created on 2 May 2011.

1) LDAPs

An LDAP is established to service a single local government, where it is deemed to be a high-growth local government where the volume of development applications necessitates its own DAP. There is currently only one LDAP which covers the City of Perth.

At a meeting of this LDAP, three specialist members and two members from the City of Perth will sit and determine applications.

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2) JDAPs

JDAPs are established to service two or more local governments. There are 14 JDAPs which cover all areas of the State.

A list of local governments comprising each JDAP is provided in Appendix A.

e) DAP applications

This section explains what type of applications are determined by a DAP.

The four (4) types of DAP applications are:

• mandatoryDAPapplications;

• optionalDAPapplications;

• delegatedapplications;and

• applicationsforamendingorcancellingDAPdevelopment approval.

i) Mandatory DAP applications

These are development applications which must be determined by a DAP.

Mandatory applications cannot be determined by a local government and/or the WAPC.

Mandatory DAP applications are for development which is not an ‘excluded development application’ as defined under the DAP Regulations and where the estimated cost of the development is as below:

Local Government receiving DA Estimated Cost

City of Perth $15 million or more

Rest of the State $7 million or more

Reference: r5

ii) Optional DAP applications

These are development applications which may be determined by a DAP at the applicant’s choice.

If an applicant does not choose the DAP to determine the application, it is determined by the local government and/or the WAPC in the normal manner.

An applicant may submit an optional application for DAP determination if the proposed development is not an ‘excluded development application’ as defined under the DAP Regulations, is not automatically delegated to a DAP by the authority (under regulation 19) and, where the estimated cost of the development is as below:

Local Government receiving DA Estimated Cost

City of Perth $10 million or more and less than $15 million

Rest of the State $3 million or more and less than $7 million

Reference: r6

iii) Applications delegated to a DAP

The WAPC and local governments may choose to delegate their decision-making authority for applications, which fit the ‘opt in’ criteria for DAP applications, to a DAP. Therefore a DAP will also determine applications of a type that either of these bodies has chosen to delegate their authority on.

Reference: r19

The applicant’s position

Where a responsible body has delegated its decision-making authority to a DAP, the applicant has no choice and must submit the application to the DAP.

It is important to note that an applicant will not have to pay the DAP application fee if their application is determined by a DAP as a result of the delegation process. Where a local government and/or WAPC chooses to delegate to the DAP responsibility for determining applications within the ‘opt in range’, they will be liable to pay the normal DAP fees. This is subject to any written agreement that the local government may enter into with the Director General.

Reference: r21, r22

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How is the authority delegated?

Either of these bodies may take advantage of this option by following the process of formally delegating their authority to a DAP.

To achieve this, a written instrument outlining the terms and the extent to which that body’s authority is transferred to the DAP must be prepared. Also, in the case of a local government, an absolute majority of the local government’s council must support the decision to delegate that body’s authority, before such delegation can occur.

The authority must then obtain the consent of the Director General to such a delegation.

Once these steps are completed, The DAP Secretariat will prepare a notice of delegation on the responsible body’s behalf and will require a copy of the council’s resolution in order to do so.

The final step in the process is for the written instrument of delegation to be published in the Government Gazette, which the DAP Secretariat will organise. The local government or the WAPC will be required to pay the gazettal fee.

Reference: r20

A DAP which is authorised by either the local government or WAPC to decide delegated applications cannot then hand over that authority to another organisation. The DAP will be responsible for deciding such applications and must treat them in the same way as any other DAP application.

iv) Amending or cancelling DAP development approval

These are applications which seek to:

(a) amend a previous DAP approval so as to extend the period within which development must be substantially commenced;

(b) amend or delete any condition to which the approval is subject;

(c) amend an aspect of the approved development, which, if amended, would not substantially change the approved development;

(d) cancel the approval.

Reference: r17

v) Excluded applications

Regulation 3 of the DAP Regulations identifies the types of development applications which cannot be determined by a DAP. Refer to the ‘Definition’ section.

DAPs do not apply in improvement schemes and in redevelopment areas that have been established under other Parliamentary Acts such as East Perth, Subiaco, Midland, Armadale, Hope Valley-Wattleup and Perry Lakes.

All excluded applications, irrespective of their value, are to be determined by the local government and/or the WAPC.

Flowchart 1 provides an overview of the process by which applications are addressed, depending on whether they are a DAP application or not.

Flowchart 2 provides an overview of the DAP application process.

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Flowchart 1 – Overview of DAP Application Process

Application is a mandatory DAP

Application (above financial

threshold of $7m across the State or

$15m for City of Perth and not a class of development

listed as exempt)

Application is of a class of development that the local government

has delegated to the DAP

Application is above the

financial threshold for a

Mandatory DAP application but is for a class of development

listed as exempt

Application is for

development of a value of under $3m

across the State or $10m in the City of Perth

Application is between

$10-15m for City of Perth

or $3-7m elsewhere

where applicant has

opted for local government

determination

Application is for the DAP

to amend or cancel its

determination

Application is between

$10-15m for City of Perth

or $3-7m elsewhere

where applicant has opted for DAP determination

Development application lodged with the relevant local government

Application is a DAP

application

Application is to be determined by the DAP for

that local government

Application is not a DAP application

Application is to be determined by local

government or WAPC in accordance with existing delegation arrangements

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DAP Process (Flowchart 2)

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3. DAP membership

A DAP is made up of the members which belong to it. Therefore, in order to understand the DAP process it is useful to begin with an explanation of the different categories of DAP membership and the various qualifications and characteristics relating to each.

This section gives an overview of these two categories. It discusses how members are appointed, removed from office and what happens if a vacancy on a panel arises.

a) Types of panel membership and quorum

Each DAP comprises of five members: three specialist members, one of which is the Presiding Member, and two local members that are nominated by the local government.

At a meeting of a DAP, a quorum is constituted by three DAP members, including:

a) two specialist members, one of whom is the Presiding Member, and

b) one local government member.

Reference: r41, r25

1) Specialist DAP members

A specialist member is an individual who has been appointed by the Minister for Planning to one or more DAPs, after being nominated for such a role from a short list of candidates who successfully submitted their details for inclusion in a register of individuals with suitable qualifications and/or experience for the role.

A specialist member may also be appointed to the following positions:

Presiding Member

The Presiding Member of a DAP is a specialist member with both experience and a tertiary qualification in town planning. In addition to the responsibilities of being a specialist member, presiding members must also chair

DAP meetings, confirm DAP meeting minutes, and where the DAP decision is appealed to the SAT, they will be the appropriate individual to represent the DAP in a hearing. These are just some of the additional responsibilities and tasks a Presiding Member must undertake.

Reference: r27(1)a

Deputy Presiding Members

A deputy Presiding Member is a specialist member with extensive experience and a tertiary qualification in town planning who will act in the place of the Presiding Member if they are unable to act because of illness, absence or any other cause.

Reference: r27(1) b

Alternate specialist members

An alternate specialist member is a specialist member who will be called on when another member is absent for any reason or an issue of quorum arises. An alternate member without town planning experience cannot act for either the presiding or deputy Presiding Member. Only individuals with town planning experience and qualifications are eligible to act as a presiding or deputy Presiding Member.

Reference: r37, r28

There will be three specialist members appointed to each DAP. The third specialist member may come from a different discipline including architecture, urban design, engineering, landscape design, environment, law and property development or management.

Exclusions from specialist membership

There are some people who cannot be appointed as specialist members. These include:

a) an officer of the department; and

b) a member of a parliament as defined in the Local Government Act 1995 section 2.20.

Reference: r35(2)

Regulation 37(2) excludes a person who is employed under the Local Government Act 1995 section 5.36 from being a DAP member in the same JDAP as the local government of their employment. In effect, this means that a person

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employed at a local government may be listed on the specialist member register but cannot be appointed as a member on the DAP to which their local government reports.

Regulation 37(2) also excludes any local government councillor from being a specialist member on the same DAP as the local government that they represent. For example, if a councillor is elected at the City of Wanneroo, where they already serve as a specialist member, they cannot sit on the North West JDAP as a local government member.

Reference: r37(2)

ii) Local DAP members

Local members are elected members of a local government council who are nominated by a local government for a DAP position and then subsequently appointed by the Minister to a DAP. Local representation is a vital component of the DAP. The relevant local government nominates four local government representative members for their DAP, from the local government’s pool of elected members (councillors).

Two councillors will be local members, and two will be alternate local members. Alternate local members will be used when an issue of quorum arises or when a local DAP member is unable to act by reason of illness, absence or any other cause.

Note: Alternate local members cannot sit in the place of specialist members, just as alternate specialist members cannot sit in the place of local members.

b) DAP members appointment / reappointment process

All DAP members will be appointed to a particular DAP for a term of not more than two years. If a specialist member is nominated to sit on more than one panel, their appointment letter will detail all of the DAPs they were appointed to. All DAP members will be listed on the DAP website.

Reference: r29

i) Process for specialist members

When it is necessary to appoint specialist DAP members, the Minister will call for expressions of interest from suitably qualified individuals who wish to occupy this role. The expression of interest process will be commenced at least three months before the existing specialist members’ terms of office expire.

The names and details of all individuals who apply and are eligible for DAP specialist member appointment will be placed on a register. A working group, called the ‘Short List Working Group’, will then be convened by the Minister. This group will consider the candidates listed on the register and submit a short list of names to the Minister for appointment. The candidates the Minister selects for appointment will be presented to Cabinet for approval before formal appointment can be finalised.

Reference: r36, r37, r38

The Short List Working Group will consist of the Director General (or nominee), a representative from WALGA, and one from the Planning Institute of Australia (WA). The final member of the working group will be an individual chosen by the Minister from the representatives submitted by stakeholders in the development industry. These stakeholders include the Housing Industry Association, the Urban Development Institute of Australia, the Property Council of Australia, Real Estate Institute of Western Australia and the Master Builders Association of Western Australia.

The Regulations allow the Minister to re-appoint a specialist member once their initial term of office has been completed.

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Reference: r29

Reappointment is not automatic and the member must engage in the expression of interest and subsequent appointment process in order to be eligible. This process is conducted in anticipation of the members’ terms of office expiring.

If a casual vacancy arises in the office of a DAP member, the Minister will convene the Short List Working Group. This group will review the specialist members’ register and compile a list of candidates for the Minister to consider appointing as a replacement member for the duration of the former member’s term. The recommended specialist member will be presented to Cabinet for approval before their appointment is finalised.

Casual vacancies can arise due to circumstances which are described under the section called ‘Casual Vacancies’ in (e)(i) below (these include members resigning or being removed from office). It is important to distinguish this process from that conducted when members’ terms of office are due to expire.

ii) Process for local members

Local government DAP members can also be appointed for a term of not more than two years. Following the expiration of a local member’s initial term, the Minister will ask the relevant local government to provide nominations for two local government members and alternate members.

Reference: r24

When it is necessary to appoint a local DAP member, the Minister will give 40 days’ notice for the local government to provide his office with the names of their nominees. The Minister will appoint the local government representatives in accordance with the local government’s nomination. If the local government fails to provide such nominations, the Minister can appoint community representatives as a local DAP member. This will ensure local representation is always present on a panel. The DAP Regulations require that these alternate representatives are residents of the local area and an eligible voter of the District, and have relevant knowledge or experience that, in the opinion of the Minister, will enable them to represent the interests of their local community.

Reference: r24(2)

Prior to formal appointment, the Minister will present the local DAP member nominees to Cabinet for approval.

Existing DAP local members can be re-nominated by the local government (provided that they remain elected members of the local government’s council). Local government elections may result in a change to the DAP membership if current councillors, who are DAP members, are not re-elected. Where a DAP local member is not re-elected as a councillor, the local government will be invited to nominate another elected member for appointment to the DAP. However, the nominee will only be appointed for the balance of the previous DAP member’s term.

Reference: r29, 32

All JDAPs local members will be listed by the DAP Secretariat on a DAP local government register.

Reference: r26

iii) Alternate members

Alternate specialist members are selected and appointed following the same process, as described in Part 3(b)i, for specialist members generally.

Reference: r37

Local alternate members are appointed by the Minister and the same appointment process as described in Part 3(b)ii is followed.

Reference: r28, r26

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c) DAP member training

A person who is appointed as DAP member cannot sit as a member of a DAP until they satisfactorily complete the training for DAP members provided by the department.

Reference: r30

Members will be sent an email informing them of the training sessions to be held.

i) What the training will involve

There will be two aspects to the DAP training sessions:

1) planning and the law; and

2) the DAP process.

Part One will cover:

• TheprincipalactsunderwhichDAPmembersmake decisions;

• Relevantlocalandstategovernmentplanninginstruments;

• Appropriateplanningconsiderationsandlegalrequirements in decision-making; and

• TheStateAdministrativeAppealsprocess.

Part 2 will cover training material on the planning and development assessment process, as well as DAP operating procedures, the DAP Standing Orders, Code of Conduct – including conflicts of interest and professional ethics, and the DAP Procedures Member Manual. The training session will include a number of case studies relating to appropriate planning considerations in the DAP context, and the legal ramifications of DAP decisions.

At the training session, each DAP member will receive a training package which will include hard copies of the presentations, training notes and case studies, the DAP Regulations, the DAP Standing Orders, the DAP Code of Conduct and this DAP Procedures Member Manual.

The training will consist of a half-day session, usually lasting four and a half hours.

d) Leave of absence

Any member who may be on leave for a substantial period of time (being an absence from three or more consecutive meetings), must request a leave of absence from the Minister.

Reference: r33

If the request is refused, and the member is absent for three consecutive meetings, the Minister will have grounds to remove them from office.

Reference: r32(3)(d)

If the Minister grants the leave request, the DAP Secretariat will notify that member and the Presiding Member of the DAP to which they are appointed. The DAP Secretariat will arrange for an alternative member to attend on the absent member’s behalf. The Leave of Absence template is attached at Appendix B.

e) DAP member vacancies, removal and resignation

i) Casual vacancies

The office of a DAP member becomes vacant in any of the following situations:

If the member:

• dies,resignsorisremovedfromoffice;

• becomesbankruptortheiraffairsfallunderinsolvency law;

• isconvictedofanoffencepunishablebyimprisonment for 12 months;

• isconvictedofanoffenceagainstsection266of the Act (which prohibits dishonest dealings, failure to disclose interests and incorrect disclosure or misuse of information).

Reference: r32(1)

If a DAP member’s term of office expires, that member’s term is extended for a maximum of three months, or until it is filled either by reappointment of the same member, or by appointment of a replacement member. This extension

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does not apply in instances where the DAP member resigns or is removed from office.

Reference: r34

ii) Removal from a DAP appointment

The Minister can remove a DAP member from their position if the member:

• neglectstheirduty

• engagesinmisconductorisincompetent

• ismentallyorphysicallyincapableofperformingtheir duties; or

• isabsentwithoutleaveforthreeconsecutivemeetings of a DAP of which the member had notice.

Reference: r32(3)

If the member ceases to hold a position or qualification by virtue of which the person is eligible for the position, e.g. a local government councillor who is not re-elected, then the Minister must remove them from their appointment as a DAP member.

Reference: r32(5)

To remove a DAP member the Minister must provide that member with written notice specifying the grounds for their removal. That member’s appointment will terminate either on the day the notice is given to them, or on such later date as may be specified in the notice.

Reference: r32(6)(7)

iii) Resignation

A DAP member may resign from office at any time by providing a written notice of resignation to the Minister.

Reference: r32(2)

Whilst the DAP Regulations permit a member to resign ‘at any time’, members are encouraged to provide the Minister with reasonable notice of their intended resignation. To resign, a member must write a letter to the Minister, informing him of their resignation and the date when their resignation takes effect. Any resignation notices are to be submitted to the DAP Secretariat in the first instance.

iv) Replacement of DAP members

Where the office of a DAP member becomes vacant, the Minister will appoint a new member in accordance with the procedures discussed under the heading, ‘Part 3 (b) DAP Member appointment / reappointment process’. Depending on the circumstances, the vacancy will either be filled through the use of an alternate member or by the appointing of a new member.

For example, if a local member resigns three months before their appointment is due to expire, it is likely their vacancy will be filled by an alternate local member for the balance of the term. However, if two local members are not re-elected towards the beginning of their term of office, then the Minister will call for nominations and appoint new local members, rather than use alternate members. These appointments will be subject to Cabinet approval.

f) DAP Member remuneration and reimbursement

i) Remuneration

DAP members are entitled to be paid for their attendance at DAP training, DAP meetings and at any SAT hearings, unless they fall within a class of members excluded from payment by the Regulations.

Reference: r30, r31 and sch 2

Members of that class include federal, State and local government employees, active or retired judicial officers and employees of public institutions. DAP members are not entitled to be paid unless the Minister so consents, and such consent can only be given with the prior approval of Cabinet. This position is in accordance with the Premier’s State Government Boards and Committees Circular (2010/02) and is supported by the rationale that individuals already on the ‘public payroll’ should not receive extra payment for services that could reasonably fall within the scope of their existing duties. However, the Minister has a discretion, with Cabinet’s approval, to permit such a member to be paid if the circumstances justify a departure from this policy. A copy of this circular is attached in Appendix C.

The payment rates are different depending on a member’s role. Presiding members are paid $500 per DAP meeting or

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for attending a SAT proceeding, and $100 for determining an application for amending or cancelling a DAP determination.

All other members are paid $400 per DAP meeting or SAT proceeding and $50 for their role in determining an application for amending or cancelling a DAP determination.

Reference: r31, sch 2

Members will be paid the fee applicable to them plus 9% superannuation. Superannuation will be paid into an account established with the Government Employee Superannuation Board, unless the member nominates another fund.

The fee schedule from Schedule 2 of the DAP Regulations is reproduced below.

Schedule 2 - Fees for DAP members

1 Fee for Presiding Member per meeting to determine development applications $500

2 Fee for any other member per meeting to determine development applications $400

3Fee per meeting for Presiding Member to determine applications to amend or cancel determination

$100

4Fee per meeting for any other member to determine applications to amend or cancel determination

$50

5 Fee for Presiding Member attending proceeding in the SAT $500

6 Fee for any other member attending proceeding in the SAT $400

7 Fee for training $400

ii) Reimbursement

Reimbursement is treated separately to remuneration. All DAP members are entitled to reimbursement of their expenses, even if they fall within the class of members excluded from receiving fees by the DAP Regulations.

All DAP members will be entitled to reimbursement of their travel and motor vehicle expenses in accordance with the Public Sector Commissioner’s Circular (2009-20). A copy of this circular is attached at Appendix D.

Reference: 31(4)

In accordance with this circular, a claim of up to 75c per kilometre can be made if a member uses a private vehicle to attend a DAP metropolitan meeting and where the round trip exceeds 50 km. The 75c rate is based on the current rate relevant to such expenses as set by the Australian Taxation Office.

For regional DAP meetings, the DAP Secretariat will organise any accommodation and travel arrangements, such as flights, that may be necessary. Regional travel may be required where DAP members live in the Perth metropolitan area and have to attend a regional DAP meeting. In such cases, the Department will provide taxi vouchers to DAP members to enable them to travel from their place of residence to Perth airport. Other travel, food and accommodation expenses will be met by the Department directly, thus reducing the inconvenience to a DAP member of incurring expenses and then having to seek reimbursement.

To lodge a reimbursement claim for motor vehicle expenses, DAP members must complete and lodge a reimbursement claim form with the DAP Secretariat. The DAP Secretariat will attend to processing of the request. The claim form is available from the DAP website and a copy is attached in Appendix E.

It is important to note that DAP members are reimbursed for their travel expenses incurred in relation to DAP matters, but NOT in relation to travel expenses incurred in undertaking DAP training. DAP members (excluding those within the class outlined in regulation 31) are paid $400 (plus superannuation) for attending DAP training.

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4. DAP meetings

a) Purpose of DAP meetings

At a DAP meeting, DAP members meet to consider and determine any DAP development applications that were submitted for development approval. These meetings are open to the public.

Meetings to determine an application for amending or cancelling a DAP’s original decision will also be held. At such meetings, the DAP must decide whether to change its original decision in the manner sought by the applicant, or maintain its original decision. Such applications are intended to cater for minor amendments to an existing DAP decision. Panel members will not meet physically. Rather, the meeting will be conducted by way of instantaneous communication between members (i.e. by teleconference) and will therefore not be open to the public.

Reference: r17 & r40(4)

b) Pre-meeting preparation for members

When a DAP application is received, the authority that receives it (a local government) has seven days to forward a copy of it to the DAP Secretariat.

Reference: r11

The DAP Secretariat will then email a copy to the DAP members to whom the application relates. By receiving a copy of the application, members will know an application has been made and will be aware that a meeting is scheduled to determine it.

Reference: r12

i) The Responsible Authority Report(s)

The Responsible Authority who receives the application is responsible for preparing the Responsible Authority Report.

The assessment of a DAP application is to follow the standard process for the relevant local government and accord with the statutory obligations of the local planning scheme. This includes public advertising if required, consultation with internal departments and external referral agencies, and completion of the Responsible Authority Report with an assessment of the application and recommendation, including approval conditions or refusal reasons and any advice notes.

Reference: r9, r12

Applicants may submit amended plans, elevations, technical report changes and additional justification in support of their DAP application within the assessment period. Any additional or amended plans are to be included in the local government’s Responsible Authority Report.

The Responsible Authority Report will be provided in the format set by the Department and should include the following information:

• anassessmentoftheapplicationagainstallrelevant development standards, including compliance (or otherwise) for all relevant statutory and strategic planning policies;

• commentandadviceonanyoutstandingapplication issues, if these have not been addressed or resolved during the assessment process;

• copiesofanyadvicereceivedbythelocalgovernment from any other statutory, public or planning authority consulted in respect of the application;

• iftheapplicationwasadvertised,copiesofallpublic submissions received;

• recommendationsastohowtheapplicationshould be determined, including conditions of approval or reasons for refusal, as required; and

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• anyotherinformationthatthelocalgovernmentconsiders will be relevant in determining the application, such as amended plans, site inspection photos, and further justification from the applicant.

Reference: r12(5)

The format for a Responsible Authority Report is provided in Appendix F.

Assessment where ‘dual approval’ is required

There are three region schemes currently operating in Western Australia: the Metropolitan Region Scheme (MRS), Peel Region Scheme (PRS), and the Greater Bunbury Region Scheme (GBRS).

In most instances where a local government determines a development application within an area covered by a region scheme, it is a determination under both the local planning scheme and the relevant region scheme. These applications do not get assessed by the WAPC.

Each region scheme makes provisions that set out what development applications require approval from the WAPC under a region scheme. Usually this results in a determination under a local planning scheme and the region planning scheme, a situation which is referred to as a ‘dual-approval’. In such instances, the local government is required to forward a copy of the application to the WAPC within seven days of receipt.

For all ‘dual-approval’ applications, the DAP will be the sole determining authority replacing both the local government and the WAPC. Both the local government and WAPC must assess the application as they normally would, but neither will determine the application.

Instead, both the local government and the WAPC must each prepare a Responsible Authority Report containing recommendations on the application. The DAP will then consider both reports and make a determination on the proposal. The determination will be made in accordance with both the local and region schemes. Whilst the DAP will consider two reports, it makes a single determination on the application.

Reference: r16

Where only a region scheme approval is required for an application that meets the DAP type and value thresholds, the local government is to forward the application to the WAPC within seven days as normal, with the Region Scheme Form 1 and DAP Form 1 attached.

Assessment process – amending or cancelling DAP development approval

The same assessment requirements apply in that the local government must prepare a Responsible Authority Report to the DAP using the authorised format. If the application also requires assessment by the WAPC, then the WAPC must also prepare a Responsible Authority Report.

However, the Responsible Authority Report is likely to contain less detail than the report for the initial DAP development application, and is to include recommendations as to the merits of the application.

Reference r17, r12

The DAP will consider the report and determine the application to amend the DAPs original decision at a DAP meeting convened for this purpose. This meeting will be scheduled, with the agenda and related materials circulated by the DAP Secretariat. However, unlike mandatory, optional and delegated DAP applications, no physical meeting of the DAP will be held. The meeting will usually be conducted by teleconference between members.

Reference r40

The DAP Secretariat will take the minutes of this meeting and send them to the Presiding Member to confirm. The DAP Secretariat will prepare the determination letter as required and forward it to the Presiding Member for their signature. The determination letter is then sent to the applicant, and a copy forwarded to the relevant local government.

Once the application is determined, the local government is responsible for the monitoring and enforcement of the amended determination, and/or any amended conditions under the local planning scheme.

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Timeframes for the submission of reports

The majority of local planning schemes have two statutory time periods within which a determination must be made. If the application does not require advertising, the statutory determination period is sixty (60) days, and if advertising is required, the statutory determination period is ninety (90) days.

For DAP applications, the same statutory timeframes still apply. However, as DAPs are the determining authority for such applications, the DAP Regulations require that:

• Iftheapplicationrequiresadvertising,theResponsible Authority Report, which contains recommendations for the DAP, is to be provided within 80 days of the application being received.

• Iftheapplicationdoesnotrequireadvertising,the Responsible Authority Report is to be provided within fifty (50) days of the application being received.

• Incircumstanceswhereanyotherstatutorytimeframes apply, the report must be submitted within eighty (80) days of the application being received.

Reference: r12(3)

References to ‘days’ means ordinary days, which include Saturdays, Sundays and public holidays, as stipulated in section 61 of the Interpretation Act 1984. If the due date falls on a Saturday, Sunday or public holiday, the due date is extended to the next working day.

Extension of time requests for submission of report

If the Responsible Authority Report will not be prepared in time, the authority will enquire if the applicant agrees to extend the deadline by which the DAP has to make a decision. This is because if the DAP does not receive the report in time, it will be unlikely to be able to determine the application within the statutory timeframe.

Reference: r16

If the applicant agrees to extend the deadline for determination, the local government may ask the DAP to extend the time within which to submit their report to the DAP.

The presiding DAP member may, with the applicant’s consent, grant such an extension of time for the local government and/or the WAPC to prepare its report for the DAP application.

Reference: r12(4)

An extension of time can be requested where the responsible authority becomes aware of any issue likely to delay the assessment and/or determination of the application. An example of such a request is contained within Appendix G.

Extension of time requests must not be misused by the responsible authority as a deferral mechanism. Where there is an on-going or an excessive delay in the assessment of a DAP application and/or submission of the Responsible Authority Report, the Director General may notify the Minister for Planning.

The Minister may direct the local government to give him any information it has, and he is entitled to keep or copy this information and provide it to a DAP. The Minister may also instruct the local government to obtain information if it does not already possess what the Minister requires. For this purpose, the Minister can use local government’s staff to obtain and furnish this information to him.

Reference: r52

Reading the Report

The DAP Secretariat will forward members a copy of the Responsible Authority Report, and any attachments such as public submissions, site inspection photos, amended plans, or further justification received from the applicant.

Members must take the time to read and review all documentation provided, as it will enable them to make a fully informed decision on the application.

Members must also familiarise themselves with the requirements of the local and/or region planning scheme which applies to the development application, as well as any local or state planning policies that may be relevant to the assessment.

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It is important that members therefore allow sufficient time to properly prepare for meetings. A large volume of material may need to be read and understood before the member can adequately consider and determine the application at a meeting.

After reading the material, a member may consider that they need further information, advice or assistance in order to make a decision. Members are therefore encouraged to read the report and other materials as soon as possible so if additional information is required, the responsible authority has adequate time to provide it.

If a member considers they do need more information and advice, such information must be sought using the ‘r13(1)’ Direction process discussed below.

ii) Directing the Responsible Authority to provide further information

If a DAP member requires further information, advice or assistance, the DAP will issue a written direction to the local government requiring it to provide this information, advice or assistance.

The authority must comply with the request.

Before requesting further information regarding a DAP application, members must first consider:

• Istherequestessentialandreasonabletotheassessment of the application?

• Willitinformthedecision-makingprocess?

• CantheResponsibleAuthorityrespondwithinthe statutory timeframes?

• HastheResponsibleAuthorityalreadyrequestedthis information?

If after considering the above questions, a member decides to proceed with their request, they must immediately submit a written request for further information to the DAP Secretariat. A copy of the appropriate form is attached at Appendix H.

Urgency in processing the request is required because the statutory timeframes for determining an application are not suspended by such a request. Any DAP decision must be made within the set time period (or such time as agreed with the applicant) or risk being considered ‘deemed refused’.

The request must specify the information, advice, or assistance required and the time within which the Responsible Authority is to comply with the direction.

Reference: r13(1)(2)(3)

The DAP Secretariat will forward the request to the DAP Presiding Member for them to review the request. It is important that the Responsible Authority’s resources are not wasted on inappropriate questions or incorrectly worded requests.

Once the Presiding Member’s confirmation is received, the request is forwarded for priority actioning by the relevant responsible authority.

At this stage, it is relevant to highlight that if the Responsible Authority Report recommends refusal of the DAP application, the DAP is not obliged to follow the recommendation. The DAP may request, by way of a regulation 13(1) direction, further technical advice or information on the conditions of development that should be applied if the recommendation is not adopted (i.e. if they approved the application despite the recommendation it be refused). Such directions should be anticipated and draft advice prepared in advance to assist the local government to comply with such a direction in a timely manner.

Under regulation 15, the DAP Secretariat will then notify the applicant of the date by which the local government is required to provide the further advice to the DAP. It will also notify the applicant of the date the meeting will be held. An example of such a notification is contained in Appendix I.

Applicants and/or local governments who consider requests for additional information, advice or assistance excessive, or timeframes unreasonable, may forward a written complaint to the DAP Secretariat.

iii) Site visits

Where a highly complex DAP application is made, or the application is contentious, the Presiding Member may consider that a visit to the development site will better enable the DAP members to fully understand and determine the application.

As soon as the Presiding Member determines the application warrants a site visit, they must inform the

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Secretariat, which will in turn notify other DAP members and arrange a mutually convenient time for the site visit.

All members should attend the site visit, as it will help inform them of the context and matters relevant to the application to be determined. DAP members may claim reimbursements for travel expenses incurred in relation to site visits in accordance with the Public Sector Circular 2009-2020. However, no sitting fees are paid for any site visits.

Members should only visit sites if the Presiding Member consents and the meeting is arranged by the DAP Secretariat.

iv) Conflict of interest

The DAP model requires that DAP members operate from an open, impartial and independent position.

As soon as a DAP member receives notice of an application, they should consider if they face any conflict of interest.

A member must disclose any circumstances which may, either directly or indirectly, place them in a position of conflict in their obligations, responsibilities or functions as a DAP member. Disclosure of such an interest may lead to that member being excluded from engaging in their DAP role to the extent of that interest. The Presiding Member has the discretion to decide whether the conflict is significant enough to justify excluding the member, if they have not already excluded themselves.

Conflicts of interest typically arise where a DAP member has a direct or indirect financial interest in an application before their DAP, or has an interest which could affect their impartiality.

DAP members must disclose these interests as soon as possible so that arrangements can be made for an alternate member to attend the DAP meeting if necessary. A Declaration of Interest Form is attached in Appendix J.

A failure to immediately disclose a conflict of interest to the DAP Secretariat could constitute a contravention of the Act which carries a penalty of $5000.

Reference: s266 of the Act.

c) Meeting dates, agenda and venue

The DAP Secretariat will organise DAP meeting dates with the relevant local government and notify members in advance of the meeting.

The DAP Secretariat will inform members when they are required to attend and where the meeting will be held. For regional meetings, the DAP Secretariat will also be responsible for making and advising DAP members of any travel and accommodation arrangements.

All documents and the meeting agenda will be provided to members by the DAP Secretariat and will also be made available on the DAP website. Meeting times, dates, locations and agendas are required to be published on the DAP and local government websites no less than five days prior to the meeting being held.

Reference: r39

Members must attend all DAP meetings which are scheduled for their appointed DAP. If for any reason, a member cannot attend, they must notify the DAP Secretariat as soon as possible so that an alternate member can attend. Meetings may be attended remotely (e.g. by telephone) if the Presiding Member consents. Again, if a member considers that they may have to attend a meeting remotely, they should forward their request for this to the DAP Secretariat as soon as possible so that the Presiding Member’s consent may be sought.

Reference: r43

DAP meetings will be held at the local government office and it is required to make its’ facilities available for DAP meetings. The meeting venue will be organised by the DAP Secretariat, in conjunction with the local government. The Secretariat will select the most appropriate and convenient office for the DAP meeting.

Reference: r50

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d) Request to defer consideration of DAP application

DAP members should be aware that the applicant may request the Presiding Member to defer consideration of their application until a later DAP meeting.

Such an application must be made at least 72 hours before the scheduled DAP meeting to determine the application.

The application must set out the reasons why the deferral is sought and must be made using the extension of time request, a copy of which is attached in Appendix K.

The Presiding Member must decide whether or not to approve this request, and inform the DAP Secretariat immediately once a decision is made.

Reference: DAP Standing Orders cl 3.2

e) Responsible Authority’s representative at meeting and presentation requests

i) Local government presence and general invitees

The DAP Secretariat will invite the Director General (or other representative) of the Responsible Authority (local government) to attend the DAP meeting when the application will be determined. The local government is encouraged to accept this invitation, but attendance is not compulsory.

Reference: r40

During the meeting, the DAP may request the local government representative to:

• provideabriefdescriptionoftheproposal;

• adviseofanyoutstandingapplicationissues;

• answerDAPmembers’questionsinrelationtothe Responsible Authority Report; and/or

• providearesponsetoanycommentsmadeduring the applicant’s and/or submitter’s presentations.

Additionally, the Presiding Member, through the DAP Secretariat, may generally invite one or more people to attend a DAP meeting. Such individuals will usually be asked to advise or inform the DAP on a matter, or make a submission to the DAP.

Reference: r40

ii) Presentation requests

When a local government advertises a development application, it may result in submissions being made to the local government by the public or other interested parties. Those who make such submissions may also wish to present their concerns at a DAP meeting.

Any applicant and/or submitter seeking to make a presentation to the DAP is required to complete the DAP Presentation Request Form attached in Appendix L. They must forward it to the DAP Secretariat at least 72 hours before the meeting is held. This Form must be accompanied by a written document setting out the name of the person or representative of the group, the DAP application it relates to and details of the submission the person or group proposes to make.

Reference: 3.6.2 & 3.6.3 of DAP Standing Orders 2011.

The Presiding Member will consider the presentation request, and each applicant and/or submitter will be advised if it has been approved.. Each presentation is to be a maximum of five minutes, unless the Presiding Member allows an extension of time.

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f) General procedure at meetings

All DAP members must comply with the Standing Orders, which detail the procedures for DAP meetings. The Standing Orders are set out in Appendix M.

DAP members must familiarise themselves with the Standing Orders.

i) Standing Orders.

The Standing Orders are termed ‘practice notes’ by the DAP Regulations and must be complied with. The practice notes set out the procedures for efficient conduct of DAP meetings.

Reference: 40(5)

DAP meetings are expected to last between one to two hours, but may vary according to the number and complexity of applications, and the length of each applicant and/or submitter presentation.

The order of business at DAP meetings is:

1. The meeting is declared open once a quorum is formed, and the minute taker and all DAP members are present.

2. Formalities such as noting of the minutes, absences, apologies and disclosures of interest are completed (members are directed to the conflicts of interest section in 4(b)(iv)).

3. The Presiding Member invites submissions and presentations to be made.

4. DAP members consider and discuss the Responsible Authority’s Reports and determine the application(s) before them.

5. The Presiding Member reports any minor amendment applications (under regulation 17) and any SAT reviews to the panel.

6. Final general business is discussed before the meeting is declared closed.

A copy of the DAP Meeting Agenda template is attached at Appendix O.

Procedures during DAP meetings

Motions

During a meeting, any member may discuss an aspect of an application by raising a motion. The member must summarise the motion before providing details about it. Further, if it is a motion which suggests a significant departure from the recommendation contained in the Responsible Authority Report, it should be presented in writing at the meeting. Once a motion is put to the members, another member must second it. Unopposed motions are carried immediately without the need for debate or vote.

A motion can be withdrawn by the member placing it if the member who seconded it agrees. An amending motion (one that changes the original motion) can be put to the DAP if it is relevant and supported by reasons from the mover. Procedural motions can also be put. These are motions addressing whether the meeting should be adjourned, closed, a motion deferred and so on.

Debating and determining applications

In making a decision, DAP members must have regard to, but need not follow, the recommendation contained in the Responsible Authority Report.

Reference: r12(6)

After hearing from any parties permitted to make presentations, verbal submissions, or who are asked to answer any questions, DAP members must make their decision in an open forum and by consensus where possible, or alternatively by a majority vote. If there are an equal number of members present, the Presiding Member has the casting vote in the event of a tied vote.

Reference: r42

Members must actively participate in the discussion and determination of applications at meetings. In particular, members are reminded of their obligation to refrain from making any statement to the effect that a local government or public sector employee is incompetent, or to use offensive or objectionable language in reference to such individuals.

Reference: r47

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A DAP may resolve to determine an application by approving the application with or without conditions, or by refusing the application.

Rotation of local government members at a JDAP meeting

A JDAP may meet to consider two or more applications received by only one local government from several other local governments comprising the JDAP.

A JDAP may also meet to consider two or more applications received by two or more different local governments for which it has been established. The following paragraphs and Flowchart 3 describe the JDAP process.

Process for single local government

At a JDAP meeting where application(s) relate to only one local government district, three specialist members and two local members from that district will attend and determine the application(s).

Process for multiple local governments

At a meeting of a JDAP where two or more applications are located within two or more local government districts, three specialist members will consider and determine all applications. However, the two local members will change depending on the location of the application.

When an application is presented at a DAP meeting, two local members from the local government receiving the application will join the three specialist members to consider and determine the application.

If the next application to be determined by a DAP is located in another local government, the first two local members will leave the DAP meeting to allow the second two members from the other local government to join the DAP to determine the next application.

Local members rotate on and off the DAP at the meeting as required, so that the DAP application within each local government is represented with local members from the local government where the application is located.

While a JDAP services a number of local governments, there is no need for local members from each local government to attend all DAP meetings. Local members only attend if the application being considered and determined is located within their local government district.

Flowchart 3 illustrates the rotation of local members on and off the DAP.

g) Post-meeting process

i) Recording meetings

Accurate minutes will be kept of all DAP meetings. An officer from the local government where the meeting is held will record the minutes and provide them to the DAP Secretariat. The Secretariat will circulate them to the members for their comments before submitting the final version to the Presiding Member for their approval and signature. Within 10 days of the meeting, the minutes will be published on the DAPs website and the website of the applicable local government.

Reference: r44

For applications to amend or cancel development approval, or where meetings are held by teleconference, the DAP Secretariat will take the minutes.

ii) Issuing Notice of Determination

The DAP Secretariat will issue a notice of the DAP determination to both the local authority which received the development application and the applicant.

Reference: r16

iii) Enforcement of development approval

DAPs are purely decision-making panels; they are not empowered to monitor compliance with any conditions upon which development approval was granted. Where development approval is granted, the local government that received the application will be responsible for ensuring the applicant complies with any conditions of approval under the local planning scheme.

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Flowchart 3 Rotation of local members at a JDAP meeting

JDAP meeting commences

Application 1 is considered

JDAP determines application 1 – located in

area administered by Local Government A

Decision recorded in minutes

Local government representative members from Local Government A leave the

meeting

Application 2 is considered

JDAP determines application 2 – located in

area administered by Local Government B

Decision recorded in minutes

No further applications to be determined

JDAP meeting ends

Presiding Member

2 specialist members

2 local government representative members

from Local Government A sit on the JDAP

Presiding Member

2 specialist members

2 local government representative members

from Local Government B sit on the JDAP

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iv) Appeals to the SAT

DAP decisions, either relating to development approval or applications for amendment of a DAP decision, are open to review by the SAT.

A person who has applied to a DAP for development approval, or sought amendment to a decision made by a DAP, can request that the SAT review:

• aDAP’srefusaltograntdevelopmentapprovaloramendment to a DAP decision;

• anyapprovalconditionsimposedbyaDAP;and

• adeemedrefusalofaDAPapplication.

Reference r18(2)

Only the applicant can request the SAT review a decision by a DAP. There is no third party rights of review; for example, a local government that disagrees with a DAP determination has no right to apply for SAT review.

In an application for review, the DAP will be considered the ‘decision-maker’ for the purpose of review. Therefore, the DAP will be the respondent in any review sought by a DAP decision, or deemed refusal (a ‘deemed refusal’ is an application not decided in time).

Reference: r18(3)

The SAT deals with a wide range of matters including planning issues. The Development and Resources stream in the SAT specifically address the review of planning and building matters. Review of a DAP-related matter will fall into ‘Class 2 Proceedings’. Class 2 proceedings are reserved for larger scale development matters and parties may elect to be represented by a lawyer. In Class 1 proceedings the applicant can choose for neither party to be represented by a lawyer.

A DAP has no separate legal personality of its own (like a company). Rather, a DAP is an entity created by Ministerial Order and formed from time to time by a meeting of sufficient members to form a quorum. For this reason, the appropriate person to attend SAT hearings will be the DAP Presiding Member – or if they are unavailable, the deputy Presiding Member. An officer from the DAP Secretariat cannot attend on behalf of the DAP.

The DAP Secretariat will manage the technical and administrative matters raised by the appeal for the Presiding Member. Within the Department, the Appeals Convenor will arrange for the State Solicitor’s Office to provide advice and representation, and will also liaise with them in relation to any paperwork, reports or documents required for the appeal. The Presiding Member will be advised and assisted in all aspects of the appeal by the State Solicitor’s Office and the DAP Secretariat in conjunction with the Appeals Convenor. As the review will be a Class 2 proceeding, a solicitor will appear for and with the DAP Presiding Member at all SAT proceedings.

Local government officers may be called upon to provide information and give evidence at SAT proceedings. The SAT will be responsible for reviewing the decision made by the decision-maker (in this case the DAP). In order to do so, it may be necessary for them to hear evidence from such officers. Local government officers may be called to give evidence even where the Responsible Authority’s recommendations differ to the DAP’s determination.

A DAP member who attends the SAT is entitled to be paid the applicable fee for their attendance unless they belong to a class of members excluded from payment under regulation 31. For more information on payments, refer to Part 3(f), ‘DAP member remuneration and reimbursement’.

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5. Responsibilities of presiding members

Presiding members have a number of responsibilities over and above those of ordinary DAP members. Only specialist members with town planning qualifications and expertise can be appointed to the position of presiding or deputy presiding members.

Reference: r27

a) Standing Orders

The Standing Orders are practice notes setting out the procedures that must be followed for efficient administration and operation of DAP meetings.

Reference: r40(5)

DAP presiding members must fully familiarise themselves with the Standing Orders. Presiding members are required to preside over meetings and conduct them according to the set procedures. The Standing Orders also contain information on meeting preparation, conduct of DAP members, and administrative matters.

The Presiding Member is specifically required to ensure:

1. all material relevant to the decision has been made available to all members;

2. all matters are properly considered;

3. all members are able to contribute to the discussion of any matter; and

4. the decision on the matter is understood by all DAP members.

The Standing Orders are set out in Appendix M, and are discussed in detail at Part 4(f).

b) Regulation 13(1) directions

Regulation 13(1) directions regarding meeting preparation for a DAP member are discussed in section 4(b). If the Responsible Authority Report is not informative enough to enable a DAP member to make a decision, that DAP member may request further information, advice or assistance from the Responsible Authority.

The Presiding Member has a specific role to play in relation to regulation 13(1) directions. Using their significant town planning expertise, they must review the request, discern whether it is appropriate, correctly worded, and sufficiently detailed to enable the DAP Secretariat to facilitate the direction.

The Presiding Member sets the timeframe to which the Responsible Authority must respond. An appropriate timeframe is calculated according to the complexity of the request, whether the Authority needs to consult with external stakeholders, and the statutory timeframes by which the DAP must make a decision. If the Authority cannot respond in time for the DAP to make its decision, a formal extension of time may be necessary. Such an extension will require the applicant’s consent and is addressed in (c) below.

The Presiding Member forwards the request to the DAP Secretariat, where it is actioned with the Responsible Authority.

c) Extension of time requests

If the Responsible Authority Report is not prepared in time, the applicant should be asked if they will agree to extend the deadline for the DAP’s decision. This is because if the DAP does not receive the report in time, it is unlikely to determine the application within the required statutory timeframe.

Reference: r16, r18

If the applicant agrees to extend the deadline for determination, the local government can then ask the DAP to extend the time for it to submit its report to the DAP.

The Presiding Member is responsible for determining requests for extension of time. The Presiding Member may, with the applicant’s consent, grant an extension of time for the local government and/or the WAPC to prepare the Report for the DAP application.

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Reference 12(4)

Granting an extension is discretionary, and presiding members must use this discretion appropriately – having regard to the fact that applicants are entitled to a decision usually within 60 to 90 days of making the application (depending on advertising or other requirements of the relevant planning scheme).

Extensions should be granted only where genuinely required. Presiding members should guard against granting consecutive extensions to an authority, unless the delay is due to factors beyond the authorities control.

The DAP Secretariat will inform members of the applicable statutory timeframe and deadlines that apply.

d) Conduct at meetings

i) Before the meeting – Presiding Member’s role

The Presiding Member must approve or refuse presentation requests from individuals who wish to present at a DAP meeting.

Requests to make a presentation at a meeting will first be directed to the DAP Secretariat, which will in turn relay the request to the Presiding Member. The Presiding Member must inform the DAP Secretariat of their decision.

As meetings are open to the public, individuals wishing to be heard should be allowed to do so. If a risk to public order is perceived, the Presiding Member may request the DAP Secretariat arrange for security personnel to be present at the meeting. If a contentious application is being considered, the Presiding Member should notify the DAP Secretariat as to the additional time they may require, if the meeting is likely to be longer than usual.

The Presiding Member may place a time limit on presentations, and the DAP Standing Orders require presentations not exceed five minutes (Order 4.6.2), especially if several are being made. The Secretariat will inform the presenter of any time limits if their request is accepted. As chair of the DAP meeting, the Presiding Member controls proceedings and ensures presentations run on time.

The Presiding Member may invite people to be present at DAP meetings.

Individuals may be invited to answer any questions DAP members have, or to present submissions to the DAP. Where such invitations are made, the applicant and the Responsible Authority have the right to also attend the meeting. The DAP Secretariat will invite the Responsible Authority to make a representative available at the DAP meeting if their report is to be considered.

Reference: r40

From time to time, DAP members or other persons who wish or are invited to attend the meeting, may be unable to attend in person, but can attend by telephone or another way of direct communication (e.g. teleconferencing). The Presiding Member can either consent to and/or refuse the request.

Reference: r43

The applicant may request that a DAP meeting for listing of their application be deferred (refer 3.2 of Standing Orders). The Presiding Member must assess the request and approve or refuse it (refer to Part 4(d) for more detailed information).

ii) At the DAP meeting – Presiding Member’s role

The Presiding Member or deputy Presiding Member must attend meetings for a quorum to be present.

Reference: r41

The Presiding Member must chair all DAP meetings and facilitate an open forum.

A Presiding Member should control order and make sure all items on the meeting agenda are addressed in an efficient but thorough manner, and that proceedings run on time.

The Presiding Member holds the casting vote at a DAP meeting, should there be an equal number of votes cast for and against an application for development approval.

Reference: r42

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The Presiding Member is responsible for confirming and signing the minutes of meetings. It is therefore recommended that they ensure the conditions of approval or reasons for refusal are correctly recorded at the meeting. This may be achieved by restating each condition, reason and decision for the minute taker’s benefit once the vote is taken.

Reference: r44

At a DAP meeting, any member may identify a conflict of interest to the Presiding Member – who must then determine if that conflict should prevent the member from participating. Members are encouraged to identify such conflicts as soon as possible so that alternate members can attend in their place. If the conflict does disqualify the member from attending, the member must not participate in the meeting where it relates to such conflict of interest.

e) Public comments

Only the Presiding Member can make any public comments or remarks concerning the actions or decisions of a DAP. Public comments on a DAP decision should only be made if requested and should be confined to brief factual statements.

Reference: r48

f) Address breaches of the Code of Conduct and misconduct

If the Presiding Member receives a complaint regarding a breach of the Code of Conduct, or concerning any alleged misconduct of a DAP member, they must address the matter in the manner described in detail in Part 6(e) below.

g) Attend SAT hearings

Where a decision or deemed refusal of a DAP application is appealed to the SAT, the Presiding Member is the most appropriate choice of representative to attend as the respondent representing the DAP.

h) Deputy Presiding Member

If for any reason, the Presiding Member is unable to fulfil their role, the deputy Presiding Member must act as the Presiding Member and undertake the Presiding Member’s functions.

Reference: r27

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6. Code of Conduct

All DAP members are required to comply with the Code of Conduct. A copy of the Code is attached at Appendix N.

Members must familiarise themselves with the Code of Conduct.

Reference: r45

a) Personal behaviour

The Code prescribes the minimum standards of behaviour that DAP members are expected to meet. Members are to act ethically and honestly at all times. Failure to conduct oneself in an honest manner, or the actual misuse of information obtained by virtue of one’s position as a DAP member, could constitute a contravention of the Act – which carries a penalty of $5000 and may result in a referral of the matter to the Corruption and Crime Commission.

b) Communication

DAP members must remain aware that they hold a public position. Such a position will be subject to scrutiny and potential criticism from the public and media. It is therefore essential that DAP members take particular care when liaising with or communicating with any parties in relation to DAP business.

All DAP decisions are to be made, and must be seen to be made, from an independent and impartial position. A DAP member who inappropriately deals with or communicates with any party with respect to a DAP application and determination process (local government, applicant or otherwise) risks appearing prejudiced, and could expose a DAP determination to review and subject any decision and process to criticism.

DAP members should avoid attending public meetings about a proposed development which will be determined by their DAP. It would be difficult for a member to attend such a meeting and then avoid the perception that they have been influenced by the proceedings. Members should decline any invitations to attend such meetings. Instead, they should ask their Presiding Member to invite

representatives of a public group to attend and make submissions at the relevant DAP meeting.

Members are reminded that only the Presiding Member can comment on DAP procedure or determinations to the public.

Reference: r48

c) Conflict of interest

The DAP model requires that DAP members operate from an open, impartial and independent position.

As soon as a DAP member receives notice of an application, they should consider whether they face any conflict of interest. Members are encouraged to read relevant sections of the Code of Conduct. A copy of a Declaration of Interest Form can be found at Appendix J.

Members are reminded that a failure to disclose a conflict of interest to the DAP Secretariat as soon as possible could constitute a contravention of the Act which carries a penalty of $5000.

Reference: s266 of the Act

Conflict (or perceived conflict) of interest is covered in more detail at ‘Pre-meeting preparation for members’ in Part 4(b)(iv).

d) Gifts

A DAP member is prohibited from accepting gifts from a person involved in a DAP application if those gifts are worth, either collectively or individually, more than $300. Where the collective or individual value of the gift(s) is between $50 and $300, the member may accept the gift(s) if they notify the Director General of their actions. A Gift Notification Form is available from the DAP website and a copy is located in Appendix P.

Reference: r46

It is important that DAP members appear impartial and unbiased. Receiving gifts from developers prejudices the perception of them as independent and should be avoided.

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The DAP Secretariat on behalf of the Director General will maintain a register detailing the gifts received and identifying the members who received them.

Reference: r46(5)

e) Breaches of the Code of Conduct and misconduct

All DAP members have an obligation to act honestly and diligently. It remains the responsibility of each DAP member to be aware of the legal obligations that apply to them in the performance of their functions under the Act. Members must therefore familiarise themselves with the following documents:

1. DAP Regulations; and

2. Code of Conduct.

The following can constitute misconduct, where the Minister may remove a member from office:

1. a failure to comply with the Code of Conduct;

2. a failure to comply with the requirements in relation to receiving gifts;

3. making statements concerning the competence or perceived dishonesty of a public sector employee; and

4. making public remarks concerning the conduct of a DAP.

Reference: r45–48

Members are required to report any suspected breach of the Code of Conduct, or any misconduct of a DAP member concerning DAP business.

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7. Complaints handling

This section addresses the handling of complaints received in relation to DAPs.

a) Procedure for submission and handling of complaints

i) Lodging complaints

A complaint may be lodged by letter, fax, telephone, email or in person with the Director General.

When a complaint is received by the Presiding Member, it must be sent directly to the DAP Secretariat, where it will be referred to the Director General.

A complaint received by the Minister will be directed to the Director General for action.

Complaints should be made directly to the Director General. However, nothing prevents any member or any other person from making a complaint directly to the office of the Ombudsman for Western Australia.

Complaints may be made under the Public Interest Disclosure Act 2003 which enables disclosures to be made within defined forms of misconduct within the State public sector, local government and public universities without fear of reprisal.

The Department will acknowledge receipt of the complaint in writing.

ii) Investigation by the Department

Where a complaint is made, the DAP Secretariat, in consultation with the Director General, will assess the severity of the allegation.

All complaints will be investigated internally, usually with the appointment of an external investigator who will furnish their report to the Director General, and to the Minister who has the power to dismiss DAP members. The outcome of that investigation will be communicated to the complainant.

However, if the alleged breach may constitute misconduct, the Director General will request the Minister to refer the complaint to the Corruption and Crime Commission for assessment in accordance with the Corruption and Crime Commission Act 2003.

iii) Alleged misconduct – investigation by Corruption and Crime Commission

The Corruption and Crime Commission (‘Commission’) has statutory powers to investigate and deal with allegations of misconduct by public officers.

Section 4 of the Crime and Corruption Commission Act 2003 defines ‘misconduct’ to include conduct by a public officer that is corrupt or dishonest or involves the misuse of the officer’s position.

As DAP members are public officers, they may be subjected to the scrutiny of the Commission in relation to the exercise of their functions under the Act.

1) Assessment by the Commission

Where a matter is referred to the Commission, the severity of the claim will be assessed and the most appropriate course of action determined by the Commission.

If the claim is not considered to involve misconduct, be outside the Commission’s jurisdiction, or not in the public interest, the Commission may decide that no action should be taken, even if the complaint is deemed to be an allegation of misconduct. This decision can be made for several reasons, for instance, if the allegation has already been investigated, the allegation concerns incidents that occurred some time ago, or the allegation is considered minor.

If no further action is to be taken, then the Commission will advise the Department on how to take alternative action.

However, where misconduct has occurred and warrants investigation, the Commission will proceed through one of the processes outlined in the Investigation stage below.

2) Investigation

Most reports received by the Commission are referred back to the home agency for investigation (see 7(a)(i) above). This is done because dealing with misconduct is primarily the responsibility of agencies (in this case the Department).

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If a complaint is referred back to the Department for investigation, the Department must provide a report on their investigation to the Commission. The complainant will be given advice on the investigation.

The Commission can also refer allegations to other independent agencies such as the Ombudsman, Public Service Commissioner or to the Auditor General for investigation.

However, in a small number of cases, the Commission may conduct its own investigation or conduct a joint investigation into the complaint with the aid of another agency. Generally, the Commission will only conduct its own investigation if the allegations are of a serious or of a systemic nature. The Commission has wide ranging powers available to it to conduct such investigations.

The complainant will be given advice on the outcome of the assessment of the report provided by the Department.

The principles of natural justice will apply throughout these processes.

b) Consequences of misconduct / contravention of Code

A DAP member may be fined up to $5000, be removed from office, and face further civil or criminal penalties depending on the nature and extent of the offence.

Section 266 of the Act imposes a financial penalty of $5000 for DAP members in relation to:

(a) a failure to act honestly in the performance of a function under the Act (section 266(2));

(b) an unlawful disclosure of information acquired in connection with the carrying out of functions under the Act (section 266(5));

(c) improperly using information to gain an advantage or to cause a detriment.

Under regulation 34(1) of the DAP Regulations, a DAP member’s office automatically becomes vacant on the following grounds (among others):

(a) conviction for an offence punishable by imprisonment for at least 12 months;

(b) conviction for an offence against section 266 of the Act.

Under regulation 32(3) of the DAP Regulations, the Minister may, by notice in writing given to the member, remove a DAP member from office on the grounds of –

(a) neglect of duty;

(b) misconduct or incompetence;

(c) mental or physical incapacity to carry out the member’s duties in a satisfactory manner; or

(d) absence without leave granted under regulation 33 from three consecutive meetings of the DAP of which the member had notice.

Nothing prevents any member or any other person from making a complaint directly to the office of the Ombudsman for Western Australia.

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Appendices Appendix A – DAP groupings (LDAPs and JDAPs)(created by Ministerial Order effective from 2 May 2011)

Local Development Assessment Panel

City of Perth

Joint Development Assessment Panels (Metropolitan)

West North-West Central

Cambridge Joondalup Bassendean

Claremont Stirling Bayswater

Cottesloe Wanneroo Belmont

Mosman Park Canning

Nedlands Eastern Melville

Peppermint Grove Armadale South Perth

Subiaco Gosnells Victoria Park

Vincent Kalamunda

Mundaring South-West

Serpentine-Jarrahdale Cockburn

Swan East Fremantle

Fremantle

Rockingham

Kwinana

Joint Development Assessment Panels (Regional)

Peel Gascoyne Goldfields - Esperance

Mandurah Carnarvon Coolgardie

Murray Exmouth Dundas

Boddington Shark Bay Esperance

Waroona Upper Gascoyne Kalgoorlie-Boulder

Laverton

Pilbara South-West Leonora

Ashburton Augusta-Margaret River Menzies

East Pilbara Boyup Brook Ngaanyatjarraku

Port Hedland Bridgetown -Greenbushes Ravensthorpe

Roebourne Bunbury

Busselton Kimberley

Capel Broome

Collie Derby-West Kimberley

Dardanup Halls Creek

Donnybrook-Balingup

Wyndham-East Kimberley

Harvey

Manjimup

Nannup

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Wheatbelt Mid-West Great Southern

Beverley Carnamah Albany

Brookton Chapman Valley Broomehill-Tambellup

Bruce Rock Coorow Cranbrook

Chittering Cue Denmark

Corrigin * Geraldton-Greenough Gnowangerup

Cuballing Irwin Jerramungup

Cunderdin Meekatharra Katanning

Dalwallinu Mingenew Kent

Dandaragan Morawa Kojonup

Dowerin Mount Magnet Plantagenet

Dumbleyung * Mullewa Woodaniling

Gingin Murchison

Goomalling Northampton

Kellerberrin Perenjori

Kondinin Sandstone

Koorda Three Springs

Kulin Wiluna

Lake Grace Yalgoo

Merredin

Moora

Mount Marshall

Mukinbudin

Narembeen

Narrogin (S) and (T)

Northam

Nungarin

Pingelly

Quairading

Tammin

Toodyay

Trayning

Wheatbelt Mid-West Great Southern

Victoria Plains

Wagin

Wandering

West Arthur

Westonia

Wickepin

Williams

Wongan-Ballidu

Wyalkatchem

Yilgarn

York

(S) – Shire and (T) - Town

* The City of Geraldton-Greenough and the Shire of Mullewa will amalgamate on 1 July 2011.

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Appendix B – Leave of Absence Letter Template(Regulation 33)

Leave of Absence Letter Template

(Regulation 33) DAP Secretariat Department of Planning 140 William Street PERTH WA 6000 Leave of Absence Request In accordance with regulation 33 of the Planning and Development (Development Assessment Panels) Regulations 2010, I request leave of absence to be granted from [Insert period] to [insert period], for the following reason(s): 1. [Insert reasons] 2. [Insert reasons] Should you have any enquiries or require further clarification, please contact the undersigned on [insert telephone number]. Yours sincerely [insert Member’s signature] [insert Member’s name] [insert DAP name] [insert date] DAP Secretariat use only Received: .................................................. Officer name: ....................................... Date referred to Minister: ................................................ Minister Response Date received: ................................................................. DAP Member’s Leave request is: ❏ Approved ❏ Refused Reason........................................................................................ / / Date sent to Member

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Appendix C – Premier’s Circular 2010/02(Regulation 30 and Schedule 2)

Premier’s Circular Number: 2010/02 Issue Date: 26/07/2010 Review Date: 26/07/2012

TITLE

STATE GOVERNMENT BOARDS AND COMMITTEES

BACKGROUND

The development of an accurate, publicly accessible database of ‘State Government Boards and Committees’ will improve transparency and facilitate effective monitoring by Government. This is consistent with the Government’s objectives of promoting efficiency within the public sector and making Government more responsive to the needs of Western Australians.

POLICY

Government has established a new approach to establishing and managing State Government Boards and Committees.

A ‘Board or a Committee’ is an entity that has one or more external members who receive remuneration for their services (other than reimbursements for travel expenses). The term ‘external members’ excludes those on the public payroll, including all current State, Commonwealth and Local Government employees; current and retired judicial officers; and current employees of public academic institutions. A former Member of Parliament is eligible to sit on a Board or Committee if twelve or more months have passed since being in the Parliament.

All establishments, abolitions (including those due to expiration), changes in name and appointments to Boards and Committees are matters for Cabinet consideration.

Ministers and agencies are encouraged to continue to utilise interdepartmental working groups, drawing upon external advice and engaging in other forms of consultation that do not involve the establishment of a Board or Committee.

The authority to remunerate State Government Boards and Committees derives from statutory provision or endorsement by Cabinet. The rate of any remuneration is to be recommended by the Public Sector Commissioner or, where provided by statute, the Salaries and Allowances Tribunal.

To ensure transparency, the Public Sector Commission (PSC) is developing a publicly accessible database of all State Government Boards and Committees. The database will include information on the purpose, membership, remuneration and term of operation of each Board and Committee. The Department of the Premier and Cabinet (DPC) is responsible for providing information for updating the database following Cabinet or Executive Council decisions establishing, abolishing, changing the name of, or making appointments to a Board or Committee.

Members of the public interested in serving on a Board or Committee are able to register their interest and lodge their Curriculum Vitae on DPC’s website. This information will be available to Ministers’ Offices for their consideration.

Guidelines for the reimbursement of travel expenses are contained in Public Sector Commissioner’s Circular 2009-20. Principles for good governance of Boards and Committees are published on PSC’s website.

Colin Barnett MLA PREMIER

For enquiries contact: David Smith 9222 9677, Department of the Premier and Cabinet Dan Volaric 9219 6200, Public Sector Commission

Other relevant Circulars: Public Sector Commissioner’s Circulars 2009-20

Circular/s replaced by this Circular: Public Sector Commissioner’s Circulars 2009-31

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Appendix D – Public Sector Commissioner’s Circular 2009-20(Regulation 31)

Government of Western Australia Public Sector Commission

PUBLIC SECTOR COMMISSIONER’S CIRCULAR

Enquiries To: 9219 6200 Number: 2009-20 Agency Support Issue Date: 03 April 2006 Public Sector Commission Review Date: 23 March 2011 Supersedes: Premier’s Circular 2006/01

TITLE:

REIMBURSEMENT OF TRAVEL EXPENSES FOR MEMBERS OF GOVERNMENT BOARDS AND COMMITTEES

POLICY

In recognition of the additional costs faced by some members of Government boards and committees in attending meetings for official board or committee business the Government has reviewed the existing policy on reimbursement for travel associated with these meetings.

Reimbursement is based on the most economical means of transport available.

Where a member of a board or committee uses a privately owned vehicle to travel between the member’s residence, or normal place of business, and the place of the board or committee meeting; the member should be paid a motor vehicle allowance at the current “cents per kilometre car expense payments” rate set by the Australian Taxation Office for the shortest practicable route, provided such travel:

• isgreaterthanaroundtripof50kilometrestoandfromthemeetingvenue;and

• isforthepurposeofattendinganofficialmeetingoftheboardorcommittee.

Where a scheduled commercial air service could have been used for the travel referred to in the previous paragraph, the motor vehicle allowance payable shall not exceed the commercial airfare.

If air, rail or coach travel is used, the cost will be reimbursed, subject to the provisions of Premier’s Circular 2009/04 and the provisions of this Circular.

Where a member of a board or committee uses a privately owned vehicle to travel between the member’s residence, or normal place of business, and the nearest airport in order to travel to and from Perth (or a Regional Centre) by aircraft for the purpose of attending an official meeting of the board or committee, the member should be paid the current “cents per kilometre car expense payments” rate set by the Australian Taxation Office for the motor vehicle travel in excess of 25 kilometres for a single trip. In this case the member may also be entitled to claim reimbursement of taxi fares necessarily incurred when travelling to or from Perth Airport (or a Regional Airport or Rail or Coach Terminal) to the meeting place in Perth, or the Regional Centre.

Accommodation and meals, reasonably and necessarily incurred on official business may also be reimbursed on production of receipts up to Public Service Award rates.

Where the member acts as a representative of another body that pays the member’s travel expenses, there is no eligibility for any further reimbursement.

No payments are to be made for the time taken in travel.

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Travel expenses for appointees to boards and committees can only be paid when remuneration, which includes reimbursement of travel expenses, is recommended by the Minister for Public Sector Management (or his delegate). On this basis, Agencies intending to reimburse board and committee members for travelling expenses under the terms of this Circular should ensure they have received a recommendation in relation to rates of remuneration.

BACKGROUND

The State/Local Government Council agreed in June 2005 on a draft policy statement that would form the basis of a review of the existing policy in relation to reimbursement of travel expenses for members of government boards and committees. The revised policy seeks to address concerns raised in the State/Local Government Council that regional representation on Government boards and committees may be restricted because of the costs associated with attending meetings.

The previous policy allowed for the reimbursement of travelling expenses, at public service award rates, to board and committee members resident outside the metropolitan area, to attend meetings in the metropolitan area.

M C Wauchope

PUBLIC SECTOR COMMISSIONER

Other relevant Public Sector Commissioner’s Circulars: 2009-31 Premier’s Circular 2009/04

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Appendix E – Reimbursement of Travel Expenses Form

39


40


41


Appendix F – Responsible Authority Report Template(Regulation 12, 17)

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43


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Appendix G – Extension of Time Request Template(Regulation 12(4))

Extension of Time Request Template (Regulation 12 (4))

Local Government Reference: [number] DAP Reference: [number] Enquiries: [insert officer name & contact number] [insert date] DAP Secretariat Department of Planning 140 William Street PERTH WA 6000 Dear [insert name of DAP Presiding Member] EXTENSION OF TIME REQUEST – DAP APPLICATION [number] We refer to the above DAP application which is currently being assessed by the [insert local government name]. The [insert local government name] makes this request in relation to the interrelated prescribed deadlines for the DAP report and deemed refusal period. Extension of time for DAP report Regulation 12(3) of the DAP Regulations requires the prescribed Responsible Authority report be submitted to the DAP Secretariat by [insert date]. The [insert local government name] is unable to forward its report within the prescribed timeframe for the following reasons: 1. [insert reasons] The [insert local government name] advises that the DAP application assessment report will be finalised and sent to the DAP Secretariat by [insert date]. In accordance with Regulation 12(4), an extension of time for the report to be submitted is requested. As prescribed in the DAP regulations, the applicant has been informed and consents to this request, as outlined in the attached [email/letter] from the applicant. Extension of time for the deemed refusal Clause [insert number] of the [insert local/region planning scheme] indicates that a [60–90] day period is required to process this application. As of the date of this letter, the application is on [insert number] days and is deemed refused on [insert date]. Clause [insert number] of the [local/region planning scheme] also indicates that the applicant and the [insert local government name] can agree in writing to extend the period in which a determination is to be made. The [insert local government name] has obtained written approval from the applicant approval to extend the above [60–90] day period, as outlined in the attached [email/letter] from the applicant. Yours sincerely [name] [title/position]

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__________________________________________________________________________ DAP Secretariat use only I have read this correspondence and consent to extend the period stipulated, being [insert date], within which the Responsible Authority Report will be provided to the DAP secretariat. Applicant Signature: _________________________________ DATE __/__/____ I have read this correspondence, note the applicant’s consent and give notice to extend the period, being [insert date], within which the Responsible Authority Report will be finalised and provided to the DAP secretariat, under DAP Regulation 12 (4). DAP Presiding Member Signature: ______________________ DATE __/__/____

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Appendix H – Request for Further Information Letter Template(Regulation 13)

47


Appendix I – Applicant’s Notification of Responsible Authority Report and DAP Meeting Date Template(Regulation 15(a) and (c))

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Appendix J – Declaration of Interest Form(Reference – section 266 the Act and regulation 45)

Declaration of Interest Form (Regulation 45, DAP Code of Conduct 2011 Part 3)

Declaration of Interest

DAP Name

DAP Member

DAP Meeting date

Agenda Item No and Subject

Direct Pecuniary Interest

Impartiality Interest

Indirect Pecuniary Interest

Nature of Interest

Proximity Interest

Tick where applicable (Definition overleaf)

Extent of Interest

Signature

Date

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Definitions - Nature of Interest

Direct pecuniary interest means a person's interest in a development application where it is reasonable to expect that the application, if dealt with by a DAP, will result in a financial gain, loss, benefit or detriment for the person. Impartiality interest means an interest that could, or could reasonably be perceived to, adversely affect the impartiality of a member with such an interest and includes an interest which arises from kinship, friendship, partnership or membership of an association, that is connected to a development application that is before the relevant DAP or which may come before that DAP in future. Indirect pecuniary interest means a person's interest in a development application where a financial relationship exists between that person and the applicant. Proximity interest, in relation to a DAP member, means an interest of the member, or a close associate of the member, in a development application if the application concerns land adjoining the person's land.

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Appendix K – Applicant’s Extension of Time Request (Deferral of DAP Application) Template

(DAP Standing Orders 2011 clause 3.2)

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Appendix L – DAP Presentation Request Template

(Regulation 40(3) and DAP Standing Orders 2011 clause 3.6)

Presentation Request Template (Regulation 40(3) and DAP Standing Orders 2011 cl. 3.6)

Must be submitted no less than 72 hours before a meeting.

Late requests will not be considered. Presentation request guidelines Persons interested in requesting to present to a DAP at a meeting must first consider: 1. Whether their concern has been adequately addressed in other submissions on the

application; and 2. Whether their concern has been adequately addressed in the Responsible Authority

Report. Your request to present to the DAP will be determined by the presiding member based on individual merit and likely contribution to assist the DAP’s consideration and determination of the application. Please complete the form and email it to the DAP Secretariat: [email protected]. Presenters Details

Name:

Business name (if applicable):

Contact phone number:

Contact email address:

DAP meeting date:

DAP Application number:

Number of persons wishing to address the DAP:

The presentation is for OR against the DAP application [delete unnecessary text]. Brief summary of presentation

[insert brief summary of presentation] [attach a written document which details your presentation] [presentations should not exceed five minutes] ATTACHMENT CHECKLIST Written document containing substance of submission presenter proposes to make (Requirement – Standing Orders 2011, clause 3.6.2) DAP Secretariat use only Presiding Member of [insert DAP]: APPROVES the request OR REFUSES the request [delete unnecessary text] If refused – detail the reason: [insert reason]

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Appendix M – DAP Standing Orders 2011

(Regulation 40)

The DAP Standing Orders can be found on the web site

http://daps.planning.wa.gov.au/11.asp?p=Publications

Appendix N – DAP Code of Conduct 2011

(Regulation 45)

The DAP Code of Conduct can be found on the web site http://daps.planning.wa.gov.au/11.asp?p=Publications

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Appendix O – DAP Meeting Agenda Template

(Regulation 40)

Meeting Agenda Template (Regulation 39 (1) and DAP Standing Orders 2011 Part 3)

[insert name] [L/J]DAP

Agenda [insert no.]

[Insert date]

Commencing at [insert time] 1. Attendance

Members Mr [insert name] (Presiding member) Ms [insert name] Mr [insert name] Cr [insert name] Cr [insert name] In attendance [include names of those scheduled to attend] Secretary [insert name]

2. Declaration of Opening 3. Apologies 4. Members on Leave of Absence

[insert member name(s)] 5. Noting of Minutes

Minutes of the [insert DAP name] meeting held on the [insert date]. 6. Disclosure of Interests 7. Deputations and Presentations

[insert details of any deputations] [insert the details of presentation:

1. The presenter’s name; 2. Who the presenter represents 3. Topic of presentation 4. Which Agenda item it relates to.]

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8. Reports

List the following for every report

1. Property location (including lot no) and subject: [insert location] and [insert subject]

2. Applicant’s name: [insert name] 3. Responsible authority: [insert name] 4. Report date: [insert date]

9. Amending or cancelling DAP development approval

[insert details on report Presiding Member to give on applications for amending or cancelling DAP development approval]

10. Appeals to the State Administrative Tribunal

[insert details on Presiding Member’s report on any DAP determined applications presently before the SAT]

11. General Business

[insert details of any correspondence to consider or any items of business a DAP member wishes to raise for discussion at the meeting]

12. Closure

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Appendix P – Gift Notification Form

(Regulation 46)

Gift Notification Form (Regulation 46)

DAP Member name:

DAP name:

Name of person who gave the gift:

Date gift accepted:

Gift description:

Estimated gift value:

Nature of relationship between the DAP Member and person who gave the gift:

Is the gift more than $50 and less than $300? Yes No

Has any other gift(s) been received within the last 6 months? Yes No

If yes, please provide the following details for each and every gift received in the last 6 months:

Gift 1

1. Gift description:

2. Estimated gift value:

3. Name of person who gave the gift:

4. Date gift accepted:

5. Was a gift notification form completed? Yes No

6. Date of gift notification form (if known):

Gift 2

1. Gift description:

2. Estimated gift value:

3. Name of person who gave the gift:

4. Date gift accepted:

5. Was a gift notification form completed? Yes No

6. Date of gift notification form (if known):

DAP Member Signature ................................................... Date………………….........

DAP Secretariat use only Date Gift Register updated: ..............................................

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development assessment panel procedures manual - dap members alias

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