Originally published as an editorial in Planning News 36, no. 9 (October 2010), under a joint by-line with Tim Westcott and Gilda di Vincenzo.
In his recorded video presentation to this year’s State Planning Conference at the start of September, the Planning Minister announced that the review of the Planning & Environment Act would be referred to a working group of industry representatives to resolve the outstanding issues “before the end of the year.”1 The Act Review was last sighted in draft Bill form in December 2009, but the outstanding issues, apparently, are the proposed proponent-initiated amendments, the proposed fast track / code-assess permit process, and the assessment process for State significant development. The resolution of these issues, the Minister claimed, would allow other reforms to start to flow.
The significance of this latter point was perhaps easily lost in the context of an announcement ostensibly about the Act Review. Yet in the Minister’s interview with Planning News published in this issue, it is clearer exactly how widespread a policy logjam is occurring here. Asked about the various outstanding VPP reviews – of the Residential Zones, heritage overlays, car parking controls, advertising signs, and so on – the Minister has reiterated that these are waiting on the Act Review. What’s more, he suggests that the working group for that review may even play a part in forging some consensus as to the best a way ahead on these VPP initiatives. Everything, therefore, is now waiting on the Act.
It wasn’t supposed to be like this. When the Act Review was originally announced, our reading of the industry consensus was that it fell in the category of a “nice to have” rather than a “need to have,” but it was still welcomed as there was no obvious down side. We share the view expressed by Andrew Walker in his discussion of the Act Review in March’s Planning News that the Act is not the major cause of delay in the planning system, and suspect most in the industry would have preferred the focus remain on fixing troublesome aspects of the VPP. Yet as originally announced, the Act Review at worst created an opportunity cost due to reallocation of resources. Until now, there had been no particular reason to believe that the Act Review process occurred at the expense of VPP reform. After all, some of these VPP reforms had been in the pipeline for some time (years in some cases) when the review was announced. Why should they hinge on its finalisation?
Readers can find the Minister’s justification for that nexus in the interview this issue [Planning News Volume 36, No 9]. It seems that the key to the link is the potential use of a fast-track / Code Assess process in the revised VPPs; since the Act Review has held up all these reforms, presumably code assess is at least in play as one of the solutions in every outstanding VPP review. Yet as described in the draft Bill, the procedural changes involved in the proposed Code Assess process essentially just involves a streamlined class-based approach to the removal of notice and review rights, tighter timeframes for decision-making, and reference to some new-found “objective criteria.”2 Yet mechanisms exist to exempt applications from notice and review now, and obviously planning schemes can include objective criteria if some emerge from the VPP reviews. Perhaps extra streamlining benefits might flow from the more formalised Code Assess stream, but surely there’s nothing here that warrants halting the VPP reviews?
In fact, we would argue that there is a strong argument that some finality on these VPP reviews would actually benefit the Act Review. One of the puzzlements of Code Assess has always been its application. We are told it will be applied to applications that are “straightforward, consistent with policy, consistent with the zoning of the land, and have limited or no off-site impacts.”3 Yet that description has always begged the question as to why such an application is in the system in the first place. If the criteria are really so simple and objective, can’t they be structured as permit exemptions? We can only guessing on such questions, though, because we have only the vaguest idea of what the criteria might be. No existing provision in the scheme has been clearly nominated as a model for a Code, and the published material on the outstanding VPP reviews don’t clearly outline any of these elusive “objective criteria,” except where they’re used as permit exemptions. We are building the Code Assess process, in other words, in the absence of any identified Code to which it could be applied.
The outstanding VPP reviews have either identified potential content for Codes or they haven’t. If they haven’t – and from the evidence of the material released on them so far, this is the case – it is difficult to see what ties their resolution to the other identified outstanding issues for the Act Review. If they have identified Codes, then let’s see them. After all, these mythical Codes sound helpful. They could be referred to in schemes under the existing Act in any number of ways, depending on their content: as permit exemptions, assessment criteria, incorporated documents, reference documents, and so on. This would allow the benefits to start flowing immediately, and allow a better trial of them before the fuller Act Review code assess model imposes additional obligations based on their purported usefulness, such as requiring Councils to decide things within 14 days.
In practice, though, we suspect the Codes will remain a furphy. If they haven’t appeared and been used under the existing system, as they clearly could be, then the Act Review won’t make them suddenly appear. What’s worse, if the existing VPP reviews have to be re-engineered to take advantage of a Code Assess process, they’ll just recede even further into the future.
Yet those reviews, if actually resolved, could potentially achieve exactly the kind of streamlining and workload reductions the Code Assess process is supposed to. These are the initiatives the industry wants to see finalised. It is time to stop holding them hostage to an Act Review that is only tenuously related.
Notes
1. Press Release: “New Working Group to Agree Reforms to Planning Laws,” September 3, 2010, http://www.premier.vic.gov.au/component/content/article/11768.html.
2. Department of Planning and Community Development, “Modernising Victoria’s Planning Act: Commentary on the Draft Bill” (Victorian Government, December 2009), 36-37.