This article originally appeared under a joint by-line with Tim Westcott and Gilda Di Vincenzo in Planning News 34, no. 3 (April 2008): 8-13. I was the lead author but incorporated some material from my co-editors.
Back in December last year, after the release of the poor results on the PIA planning report card, we noted that such a negative self-assessment was not a luxury that the planning profession could afford. We argued that in order to justify our continued existence, planners need to make sure that the planning system dramatically improves. We argued that such improvement needed to achieve two broad objectives:
- The system has to be able to deliver better outcomes; and
- It has to do so while imposing less burden on the community.
The following discussion outlines some of the ways that might be achieved. It is based on suggestions garnered from our calls for contributions over recent months, our own experiences, and countless informal discussions with frustrated colleagues over the years. What follows is by no means definitive: it is hoped that by collating some of these ideas (many of which are familiar old chestnuts) in one place, we can prompt both further discussion and an increased sense of purpose and urgency in the move for planning system reform.
The Big Picture
The later parts of this article will include quite specific suggestions for improvements, cutting down to individual planning scheme clauses. Yet it is also important to have some idea of the bigger picture so that options for more major structural changes are not foreclosed, and also to better understand the inbuilt tendencies of the existing system so that we they can be counteracted and neutralised as best as possible.
The Problem of Zones
Those who have only planned in zone-based systems find the idea of a system without them difficult to comprehend. Yet, as we argued in our editorial last month, there is an element of perversity to zones. Planners tend, nowadays, to recognise that there are advantages to a vibrant mixes of uses, but the zoning tool is fundamentally designed to separate uses. The Victorian system uses various means to get around this (patchwork site-by-site application of zones, wide discretion within zones, and “anti-zones” such as the Mixed Use Zone) but it is important to recognise that when we use a zoning-based system to achieve mixed-use outcomes we will always be fighting the inherent traits of the system.
Alternative approaches are considered briefly below. However, while we are working with the existing system we need to counteract two big problems. The first is that the difficulty of our existing scheme amendment process means that zoning is too “set in stone.” Where circumstances change, or a property is mis-zoned, it is far too hard to get that situation resolved.
The other problem is that by prioritising use and development “triggers” at the expense of policy, the zone and overlay system tends to maximise burden and minimise outcomes. This is because the National Trust principle limits our consideration of any given application to those issues that specifically relate to the need for permission. This is a sound principle in that it stops each planning assessment from blowing out into a boundless critique, but it leaves the planning system struggling to deal with broad-based issues such as sustainability or housing affordability. This is because the planning system, in practice, doesn’t get a look-in unless a permit is triggered. So a zone and overlay-driven system will either let these issues go through to the keeper (minimising outcomes), or attempt to address them by throwing the permit triggers out as widely as possible (maximising burden). For these reasons, much of the discussion that follows talks about how to get things out of the zone-and-overlay “net,” in favour of a targeted strengthening of those sections of the scheme with more universal applicability, such as the state and local planning policy frameworks, and the particular provisions.
Alternatives to Zones
It would probably be the most significant systemic and cultural change a Victorian planner could imagine, but is there a better way to conceive the classification of land than zones in the form that we know them? There are other models out there with their own merits, and maybe it is worth considering whether elements of these would better meet our needs. In Britain for example, planning schemes tend to designate some land for particular uses on a policy basis; if there are no particular policies for change or conservation then the land is not ‘zoned’ at all. The British system is by no means ideal, but it provides an interesting contrast to Victoria’s all-encompassing zoning. It focuses attention on those areas that need planning the most, rather than tying everything up in the onerous detail of permit triggers and exemptions, subjective land use definitions, and the minute nuances of zoning provisions.
The move to Priority Development Zones in key regeneration areas is a useful reform along these lines. If we know what we want on a site, is there really a need to force interested persons to look up the SPPF, MSS, a local policy, zone, overlays and various reference documents just to find out that mixed-use development with active frontages will be supported in activity centres? Surely there is a better format of planning regulation that would allow us to cut to the chase.
Planning Scheme Amendments
A Faster Amendment Process
The problem with amendments is that the same laborious process exists whether you are moving a zone boundary 5 centimetres or re-doing the entire Planning Scheme. It would be useful to be able to extend the idea of the Section 20(4) Ministerial amendments to all relatively routine amendments. Perhaps some sort of timeframe also needs to be put on the amendment process to at least provide some impetus to keep things moving. It will be interesting to see whether the Department’s timeline guidelines for the assessment of amendments specified in the February 2007 advisory note Reducing Amendment Timeframes speed things up, because this has traditionally been by far the slowest part of the process.
Report Ministerial Timeframes Relating to Amendments
Given this longstanding frustration with the number of amendments “on the desk,” awaiting authorisation or approval, it is vital that there is continued political pressure on the Minister and DPCD to meet the Reducing Amendment Timeframes targets. There should be mandatory quarterly reporting about the throughput, timeframes and quantity of amendments currently with the Minister.
Death of the Authoriser
Has the authorisation process really been a good intervention in the system? Could the system be sped up by getting rid of this? It seems remarkable that one of the initiatives of a planning reform era that produced documents such as Cutting Red Tape and Better Decisions Faster was to actually add an extra stage of bureaucratic intervention. Councils already had a strong incentive to discuss the form of proposed amendments with the Department, since at the end of the day the Minister assesses the amendment anyway. Authorisation doesn’t cut red tape, it increases it.
The Nature and Structure of Policies and Particular Provisions
Get Real About Policy
One of the oddities of recent months has been the metamorphosis of a report about strengthening local policy into a review of residential zones; we alluded to this issue in our November 2007 and March 2008 editorials. The thrust of those changes to the zones has merit, but the fact that the remedies to the problem of undervalued policy were seen to lie in redrafting the zones should be seen as something of an admission of failure with regards to the role of policy in the system.
The SPPF and LPPF simply aren’t taken seriously, and we should stop tiptoeing around this point. This is simultaneously a cultural, structural, and content-related problem, with each reinforcing the other. It is a cultural problem because there is an entrenched idea that if something really matters, it is put in a zone or overlay. It is a structural problem because policy is not allowed to include prescriptive controls and can only function where some other control applies. And it is a content problem because the SPPF has essentially been empty, filled with largely meaningless motherhood statements; while the LPPF has been viewed with suspicion as a vaguely subversive dumping ground for whatever Nimby-ish local concerns Councils could sneak past the DSE and DPCD. As a profession we need to build better policy and then take it more seriously.
Top Up the “Empty” Policies
The first step to doing that is to improve the sections of the Scheme that are of state-wide application: not just the SPPF but also the particular provisions. Both are empty, but in different ways. The SPPF, as mentioned, is “light-on,” with too little content. The Particular Provisions (other than Clauses 54 and 55), meanwhile, often have a “throw every ball in the air and let the planners catch them” approach: the parking and advertising sign provisions, for example, mention every possible consideration without really giving any guidance as to how the competing imperatives should be resolved. This creates inconsistency and uncertainty, and leads to arguments that should be determined on a system-wide or area-wide basis being fought over and over again in each application: for example, through countless overlapping parking studies in support of parking waiver applications.
It also means Councils waste a great deal of effort duplicating strategic work that has statewide application. Consider the number of policies in local sections of planning schemes that cover matters of statewide interest: advertising signs, discretionary uses in residential zones, development applications in heritage areas, and so on. These often contain genuinely local provisions, but they also expend a great deal of time outlining general principles that will apply everywhere: advertising signs should not obscure architectural features of buildings; non-residential uses in residential areas are more favourably looked at adjacent to main roads; “mock-heritage” buildings are not a favoured design response in heritage precincts; and so on. General principles such as those should be laid out more clearly in the SPPF and particular provisions, leaving the local policies to concentrate on particular local considerations. Such an approach would reduce the unnecessary work for Council strategic planners and plug scheme “holes” for Councils that don’t have the resources to prepare policies about such matters. Placing more of an emphasis on State policy might also help to reduce the concerns from the private sector that a more policy-driven system would be hostage to the whims of local communities and councillors.
The foundations of a much more helpful State policy section already exist. In addition to the many local policies that could be adapted to statewide use, various branches of the State government produce all sorts of documents that sit outside the scheme: urban design documents such as the guidelines for activity centres, safer design, and higher density residential development, or Heritage Victoria’s Guidelines for Assessing Planning Permit Applications. The problem with all this work is that is largely wasted: if we have an acknowledged problem with policy in the Scheme not being given enough weight, what chance do things outside the Scheme have? There is a place for reference documents, but there needs to be more effort put into boiling down the essence of some of these documents into punchy policy that will benefit everybody.
…And Slim Down the Ones We Have
The cause of local policy isn’t helped by the format encouraged by the practice note on Writing a Local Planning Policy, which stipulates a structure that runs from “policy basis” to “objectives” to “policy.” This robustness is great in theory, but in practice often leads to a repetitive labouring of points, as in:
Policy basis: “The MSS says we don’t like ugly buildings.”
Objective: “To avoid approving ugly buildings.”
Policy: “Buildings shouldn’t be ugly.”
This kind of redundancy actually just dilutes the effect of a clear policy statement and adds bloat to the scheme. (Similar points could be made about the prevailing structures of other parts of the Scheme, such as overlay schedules). Planners would do well to spend less time worrying about arbitrary grammatical rules – “it is policy to…” rather than “it is policy that…” – and demonstrating excruciating strategic links at every stage of the policy process, and just say what we want in a planning policy. And yes, this includes prescription.
Don’t Be Afraid of Prescription
In the February issue of Planning News, Rob Adams persuasively put the case for some key development controls such as height controls to be mandatory. Mandatory controls have been anathema in recent years, but it’s time to admit that there are circumstances in which they provide considerable benefits in the form of increased certainty and reduced planning disputes. Councils currently fight height battles, for example, over and over again at VCAT, with every developer considering their site the special case: with only discretionary controls and a devalued LPPF to draw on, many height controls are broken down quickly and become simply a starting point for discussion. In circumstances like this, there is a lot to be said for doing the strategic work up front and then making it stick through prescriptive controls.
Planning veterans will sigh at the thought that the prescriptive vs performance-based pendulum might swing to the other extreme. In truth, there are times for both approaches, and we should pick and choose based on circumstances, rather than an ideological commitment to either approach.
Procedural Improvements to the Act
Clarify the Operation of Division 1A
Last month’s Planning News highlighted the advantages of using Division 1A (Sections 72 to 76D) in favour of secondary consent for plan changes. The irony of that debate is that Division 1A is actually best suited to the minor changes for which it has been increasingly abandoned in favour of secondary consent. Meanwhile, more complex changes to permits (such as those that add new conditions or which approve whole new portions of development to an existing approval), have proven confusing, with planners often finding themselves puzzled by the intricacies of such amendments. Does the preamble of a notice of decision to amend a permit describe only the new works, or the whole proposal? Does the original schedule of materials govern new works approved under an amendment? If new works are added to a completed building under an amendment, do we get two separate expiry conditions?
Another point is that the May 2005 practice note relating to the Planning & Environment (General Amendment) Act currently states that when a permit is amended the “original form of the permit” is superseded and can no longer be acted on. That implies that an amendment to either permit or plans would supersede all the previous endorsed plans too. It would be helpful for the DPCD to clarify how this should work, and to allow Councils to endorse amendments as supplementary plans without necessarily having to re-endorse all the plans for unchanged portions of the development.
A more detailed practice note about amendment processes, with some detailed “worked examples,” would be of great assistance in helping planners to amend their permits correctly. The same practice notes should also clarify the role – if any – of secondary consent in amending plans.
Let Councils Make Minor Changes to VCAT Permits
The removal under the 2004 changes to the Act of the ability to make simple changes to Tribunal-issued permits remains perplexing, and seems to have fuelled the enthusiasm for the overuse (misuse?) of secondary consent. The ability to make simple changes to Tribunal permits, subject to some clearly laid out tests along similar lines to those that used to exist, would remove some burden from the Tribunal and avoid the proliferation of dodgy circumventions of the current Section 72(2) through secondary consent.
Trust Councils to Build Barbecues
The combination of Section 96 of the Act and Clause 67 of Schemes has the effect of requiring advertising for all applications on Council owned or managed land. That notice goes to all adjoining properties, which in the case of parkland can be an enormous number of people. The end result is that minor works on Council land involve disproportionate effort. It’s understandable that extra scrutiny should be required when Councils apply to themselves for permits, but there should be some threshold below which this isn’t necessary.
Reform the Covenant Provisions
Given the cost of enforcing restrictive covenants, the move in 2000 to forbid the issue of planning permits in contradiction of covenants was understandable. Yet the practical result has been that Councils (and the Tribunal) are left trying to interpret and enforce private legal agreements to which they were not parties. Is it really the place of planners to be interpreting garbled legal agreements that they didn’t draft and don’t understand, which don’t relate to any valid planning consideration, and for which the only interested parties are long since dead? The problem of covenants was a legal one, and the real solution was law reform: Section 61(4) of the Act should only ever have been seen as a stopgap measure. The government should create more accessible means to enforce covenants, and better mechanisms to remove or vary them, rather than offloading a legal problem into the planning system.
Revisit Statutory Days
The current 60 day timeframe has, for some Councils, become an unattainable goal for average applications, and for certain complex matters it is indeed quite unreasonable. Everybody loses when it becomes accepted that 60 days can routinely be breached. Consideration should therefore be given to different timeframes for different classes of application, with complex matters (perhaps determined by a particular dollar value, or certain types of permit triggers) allowed 90 days. To balance this, the timeframe for simple matters could be shortened to 30 days (with 14 days for further information) to ensure Councils remain focussed on getting the small things out quickly. “Average” applications would remain at 60 days. Such “complexity classes” will never be an exact fit for the true difficulty of applications, but it should be possible to improve on the one-size-fits-all approach to timeframes we have now, to help foster a culture where statutory timeframes are taken more seriously.
The likely objection to such an approach would be that there are too many “simple” matters in the system to deal with them all in 30 days. But that concern is itself revealing about the problems facing the system: there is a great deal of scope to revisit permit triggers to remove some of that burden.
There would also be merit in allowing Councils – subject to the agreement of the applicant – to “pause” the clock in circumstances where Councils and applicant are working to resolve concerns that have arisen during the assessment process.
Allow the Prodigal Applications to Return
The system of making permits subject to a further information request “lapse” automatically after a certain period of time has generally functioned well. However, it is easy for permits to lapse “accidentally,” for example when an applicant believes they have submitted the information but has forgotten part of it. There should be some discretion for Councils to re-awaken such application in instances where it will prove easier for everyone.
Narrow Advertising to the Things and People that Matter
The current wording of Section 52 of the Act currently creates a situation in which if one person needs notice of an application, notice has to go to every adjoining landowner. In cases where only a single person is effected, this “one in, all in” approach can greatly increase the hassle of advertising and increase the odds of the application process “blowing out” through meritless objections.
There is also no clear ability to limit the judgement about material detriment to those considerations actually in play under the permit triggers. The Tribunal recently found that such a link exists – see this month’s VCAT Decisions column – but the actual wording of the Act makes the basis for such a link less than clear; certainly there is room for increased clarity on this point.
Permit Triggers
Written Backwards the Planning Scheme Controls Should Not Be
The desire to ensure that permit triggers were kept out of the hands of Councils seems to have been paramount when drafting the VPPS, and nowhere is this more obvious (and more detrimental) than in the structure of the overlays. The “activating” permit trigger clause is placed in the front (State) part of overlays, and all the schedules can do is exempt things back out. This Yoda-like back-to-front structure maintains the polite fiction that the “real” control is in the State-controlled VPP section, but in practice this is just a contrivance.
Unfortunately, it is not a harmless contrivance. Firstly, the controls become circuitously worded and much easier for lay people to misread. The control is needlessly dispersed through two separate clauses and its meaning is distorted by the unfortunate backwards wording used in the schedule to the overlay, where the emphasis is on what doesn’t need a permit.
This isn’t just an issue of clarity, however: the workload ramifications of this structure system-wide are difficult to overstate. In practice, buildings and works controls default to “on,” catching virtually everything. This has meant that efforts to reduce the burden of the system have focussed on trying to expand the exemption provisions within overlays and Clause 62. Those efforts are welcome, but we will always be playing catch-up until the “permit for everything” bias of the VPPs is reversed.
If schedules actually included the permit-triggering clause, the question of what developments really warrant a permit would inevitably be more front-and-centre when those controls went through the amendment process. At the moment, it’s too easy for the question of what permits will be triggered by a control to recede in importance when new overlays are considered by councils, panels, and the Minister. An “opt-in” permit trigger system would hopefully cause more consideration before new overlays introduced sweeping needs for permits, by forcing more consideration of what does need a permit rather than putting together ad-hoc lists of what doesn’t.
Implementing this change would be fiendishly complex; presumably we’d need to start by a state-wide “flipping” of the controls to meaning-neutral equivalents, with the real benefits following after that as incoming controls were better worded and the old catch-all controls were gradually rolled back. It would be worth the effort, though: the number of meaningless buildings and works permits taken out of the system by such a change would be enormous.
“Yes, You Need a Permit for a Shed at the Back of Your Oil Refinery”
The opt-in bias of development controls isn’t limited to overlays: we also see it in the zones. For example, almost all buildings and works need a permit in the Industrial and Business zones. Do these zones really need buildings and works controls that are in many respects more restrictive than those applying in heritage areas? Once again, there needs to be some thought about what actually should need a permit in these areas, rather than just opting it all in and letting the statutory planners sort it out.
Wave Goodbye to Parking Waivers in Strip Centres
A review of the parking provisions in the planning schemes is underway, and is both welcome and long overdue. Whatever the outcome of that review, one particular bugbear in the system needs to be overcome: parking waivers in strip shopping centres.
Supporting traditional strip-shopping centres is one of those clear planning gains that almost everyone can support, and the Business 1 Zone currently purports to do so by allowing a wide range of uses as-of-right. However, in traditional strip shipping centres, that gain is largely clawed back by the parking provisions which require parking waiver permits when uses change. These permits are completely unnecessary, since the Tribunal (and, hopefully, most councils) have long since recognised that it is inappropriate to penalise individual businesses where precinct-wide parking shortages exist. So for no planning gain we hamper strip centres’ ability to compete with malls (which can mix and match tenants without need for new approvals) and – through delays and uncertainty – add considerable economic burden to the landowners and small business operators in strip centres.
There exist mechanisms such as parking precinct plans (activated under Clause 52.06-6) to get around this problem. However, given most councils lack the strategic resources and / or political will to actually implement such plans, an automatic exemption from parking requirements in strip shopping centres needs to be built into the system. This could be done in various ways: for example, such centres could be placed in a “Strip Shopping Centre” version of the Business 1 Zone, and then that zone could be exempted from parking controls at Clause 52.06.
Take Clause 52.27 Out Back and Shoot It
While on the subject of unnecessary burdens on small business, why do restaurant owners with an approved or as-of-right restaurant use need both a liquor license and a planning permit for a liquor licence? Such permits are effectively an approval to go and seek another approval. Clause 52.27 just creates a needless duplication of process and a dilution of responsibility for amenity issues relating to licensed premises (clearly contrary to the leading practice of a single point of assessment identified by the Development Assessment Forum, as outlined elsewhere in this issue). There is movement towards clearing up some of the mystery of Clause 52.27 by finally introducing some decision guidelines, but why not be bold and just get rid of it completely?
Let the People Paint
Many councils have heritage precincts with external paint controls “turned on,” creating the need to get a planning permit whenever paint colours change. While it might be nice if all heritage precincts were uniformly painted in suitable heritage colours, in practice the administrative burden of these provisions outweighs the benefits. The standard requirement for a permit to paint over previously unpainted surfaces in a heritage overlay catches the really serious examples, and is sufficient protection in the vast majority of precincts. Painting over paint causes no permanent damage to heritage fabric; we can live with the occasional bright pink house in heritage areas. External paint controls should be turned off for all but a handful of the most pristine and high value precincts.
Local Government Is Not a Typing Pool for Referral Authorities
There are a number of overlays and particular provisions in the planning scheme that create permit triggers that are purely referral authority-driven: LSIOs and SBOs, for example, or the permit requirement for new crossovers to Category 1 roads. These funnel work into Council offices, which is then farmed out to the referral authorities for an answer, and then sent back to Councils for permits to be typed up and issued. There is enormous inefficiency inherent in this process, and it creates potential for error (for example if VicRoads categorisations fall out of step with their zone equivalents). Many of the issues raised by such triggers could probably be adequately picked up through a combination of building permit processes, direct application to the referral authorities, and flags on land information certificates.
Other Things
Where Are the Planners?
One of the most pressing of the system’s problems is the difficulty of attracting and retaining good and experienced staff, particularly in local government. Issues of planning education and promotion of the profession are beyond the scope of this article. However, in the current context it is worth noting that true system reform has the potential to considerably improve the professions retention of truly excellent people. A system with fewer frustrations, a higher proportion of meaningful assessments, and more scope for actually doing some good, would be less inclined to drive people away from the profession.
How and What to Advertise?
Peter Jewell raised the divergent approaches to advertising between Councils in his column last month. We endorse his suggestion of a practice note giving guidelines for notice, but perhaps this idea could be taken further. Such a practice note could also give some guidelines about when to advertise, to hopefully give Councils the courage to not advertise truly minor matters. While the ultimate rule will always be the material detriment test in the Act, it might help gun-shy Councils to be able to point to some “rules of thumb” for things that should not normally need advertising: single storey dwellings more than a metre from boundaries; car parking waivers of only a few spaces in business zones; liquor licences for existing restaurants in business areas; and so on. Of course, such guidelines could also form a starting point for consideration of further exemptions from notice and / or the need for permits.
Clarify Operation of DPO and IPOs
These important tools, which are particularly heavily used in growth areas, are currently unrecognised in the Act and in crucial sections of the Scheme (such as the referral section). Anecdotally, there are reports that some service authorities struggle to deal with them, confusing them with permits. Referral arrangements for such tools need to be formalised, and an appropriate fee structure applied to their assessment (other than the current $94 “satisfaction” fee for what might be months of work).
Practice Notes and Standard Fees for Access to Information
Many Councils currently make old applications too difficult or expensive to access. As argued by Peter Jewell last month, the practice note about access to planning documents should be expanded to more clearly spell out the appropriate levels of access to information and to set some reasonable guideline search fees.
And Just Briefly…
There remain lots of other issues that we don’t have the space to explore, or about which we don’t claim to have the answers. A small sample of other issues deserving to be on the reform radar:
- A better system for preventing encroachment of sensitive uses into buffer areas; such controls generally only control new sensitive uses and not vice versa.
- Clearer guidelines for existing use rights; the Scheme seems to read these rights narrowly (eg at clause 63.04) but the Tribunal and courts have read them widely.
- Provide more clarity for the operation of Clause 52.23 – Shared Housing.
- Provide a VCAT search engine that actually finds cases, and which allows more sophisticated filtering of results.
- Map the sites for which the Scheme doesn’t apply, or for which the Minister is the Responsible Authority.
- A review of the various accommodation definitions, and the way that the scheme operates when Section 2 accommodation uses change to as-of-right dwellings.
- Given the number permit triggers linked to the construction of multiple dwellings on a block, a development (rather than land use) definition of “dwelling” wouldn’t hurt either.
For even more reform ideas that space prevented us discussing, selected verbatim extracts from the submissions made by planners for this edition follow this article.
Final Thoughts
There will be points we’ve raised in this article that some will disagree with, and many other possibilities for improvements that we haven’t addressed. We encourage anybody with such gripes to enter the debate themselves, and send their views to us via the contact details at the front of the magazine. Whether readers feel our suggestions are crazy, or too timid, the important thing is to get as many possible suggestions in the public realm for discussion. Many of the actions by DPCD that are currently on the go (as detailed elsewhere in this issue) should make some inroads into the problems raised in this article. At the same time, however, the wider planning community need to keep advocating for further improvements to ensure that the government’s reform agenda is as widely conceived and as vigorously pursued as possible. Given the reservations expressed by our profession about our own performance, it is vital that we seize the opportunity to do better.