The annual report highlights an increase in complaints and also shines a light on investigations into some councils which provide timely reminders for all.

What are people complaining about and why are there more complaints?

The NSW Ombudsman has seen an increase in complaints about delays or inaction on enforcement action. The NSW Ombudsman is of the view that the increase in complaints is a direct result of logistical issues which have arisen as a result of the COVID-19 pandemic. In particular, as COVID-19 lockdowns prevented non-essential inspections from taking place, many local councils are working through a backlog of investigations.

Accordingly, the NSW Ombudsman has determined that there is an ongoing impact of backlogs, including slipping customer service standards, delays in responding to complainants, and delays in responding to our preliminary inquiries. In combination, this is resulting in the NSW Ombudsman receiving a notable increase in complaints from the public.

What are some examples of the work the NSW Ombudsman has done with local councils in 2020-21?

A. Wollongong City Council

The NSW Ombudsman investigated Wollongong City Council and its management of planning and development issues associated with a contaminated site. In October 2021 the NSW Ombudsman made 8 recommendations to the council. In response to the recommendations, the council made the following adjustments to its systems:

1. changed its record systems to include information about the contamination of the site that gave rise to the complaint;
2. trained staff on what to do when considering and granting applications to develop land which could potentially be contaminated; and
3. updated its standard development assessment template to ensure staff addressed any questions about potential contamination before recommending approval or refusal of development applications.

B. Broken Hill City Council

An investigation was also carried out with respect to Broken Hill City Council, in circumstances where the council had breached the Environmental Planning and Assessment Act 1979 (EPA Act) by allowing its own unfinished Civic Centre to be used for large public functions, despite not having the necessary certification that it was safe to do so. Following the investigations, the council attended to the following actions:

1. agreed to engage an external or independent third party or another council to make development assessments where Council was the proponent and to ensure that, where it took this action, the agreement was publicly advertised;
2. ensured that all staff and managers attended training and undertook to hold refresher training annually;
3. took action to counsel the General Manager for their breach of the EPA Act and the procurement guidelines;
4. tasked its Audit, Risk and Improvement Committee to review the procurement framework and then posted the revised policy on its website.

C. Transport for NSW

There was also an investigation and recommendations made to Transport for NSW to improve its handling of maritime licensing and compliance issues. As a result of the investigation, Transport for NSW has (among other things) updated its compliance and enforcement policies and procedures to help staff make better decisions when they are enforcing legislation.

What are some changes coming in 2023?

Amendments have been made to the Environmental Planning and Assessment Regulation 2021 to strengthen transparency and accountability in the planning system. The amendments, which come into effect in April 2023, will require councils to have a conflict-of-interest policy that documents how they will manage any potential conflict of interest that may arise when a council assesses development applications where they have a commercial interest in the outcome.

To assist councils, DPE has also prepared Council-related Development Application Conflict of Interest Guidelines, which can be accessed below.

What can local councils do to manage the risks?

It is best to engage legal advisors to ensure that legal obligations are being met. In this regard, Shaw Reynolds Lawyers provides assistance with such matters including:

1. regular training and seminars on legislative obligations of councils and council officers;
2. conducting legal reviews of templates to ensure statutory requirements are met;
3. reviewing and amending compliance and enforcement policies and procedures;
4. acting as probity advisors and sitting on risk committees to manage risks associated with major projects/day-to-day operations;
5. preparing and conducting legal reviews of conflict-of-interest policies.

Read more

Access the NSW Ombudsman Report here.

Access the Council-related Development Application Conflict of Interest Guidelines here.