The first instalment of the long-awaited Underwood Review of the Victorian planning system (which we’re supposed to call the “Victorian Planning System Ministerial Advisory Committee”) was released on Friday and makes for interesting reading. The full report is here, and the government’s response is here.
The paper is structured partly as a review and partly as discussion paper: at certain points it’s making quite specific recommendations, at other points it’s just kicking ideas around. This is actually one of its strengths: it certainly gives a sense that the Committee was legitimately interested in hearing people’s views. There is a much more genuine sense of community engagement in this paper than in, say, the previous government’s review of the Planning & Environment Act. To glance through the submissions received by the Committee (on the DPCD website here) is to get a sense of what an achievement that was. Extracting value from those submissions – most of which are either disgruntled objectors saying the system is too developer-friendly, or industry objections saying the system is too objector-friendly – is no mean feat. (For what it’s worth my submission – which I was flattered to see the Committee quote at a couple of points – is here).
The paper is also a pretty good synthesis of earlier reviews. This means a lot of that earlier work hasn’t been wasted; the downside is that there is a sense of familiarity about the suite of changes proposed, and some dud ideas that have been kicking around for years have been given another undeserved run. (More on these later). However the Committee are much stronger in calling for reform than most of the earlier reports. For example, on page 29, they lead off with the following:
The Committee considers that the planning system in Victoria requires reform.
The Committee considers that in some respects, the planning system has strayed from its original purpose, intent and design and it is timely to consider whether the system remains ‘fit for purpose’.
It is apparent from the submissions and the Committee’s own experience, that the planning system is now very complex. There is a lack of ownership of the system, a lack of responsiveness to issues as they arise, a lack of alternate processes that recognise different types of applications or amendments, timelines are rarely adhered to and in other areas there are no timelines at all. Consequently, delays cause frustration and disappointment and sometimes disillusionment. Costs are higher through delay and as a result, there is an increasing propensity for ad hoc processes and interventions in the planning system to try to compensate for the perceived lack of timeliness in decision making.
This is a much stronger statement in favour of reform than has been found in many of the previous reviews of the system, and the Committee should be applauded for that.
I don’t have time to do a more structured or thorough analysis of the report, but a few points did leap out at me as worth commenting upon.
DPCD’s Role
On page 50 the committee quote the Municipal Association of Victoria, who argue that VCAT and Planning Panels have come to usurp the leadership role of DPCD, owing to the leadership vacuum left by the department. I would agree with that. On page 52 the Committee call for DPCD to lift their game, but I wish they had been more specific. Back in 2008 the Auditor General’s report into the system had stronger findings on DPCD that are worth quoting again:
- Existing arrangements within DPCD do not allow for comprehensive measurement and monitoring of the overall performance of the planning system. DPCD should further develop these arrangements supported by a structured program of stakeholder engagement.
- Performance measurement arrangements have not been developed to assess the impact of recent changes to the legislative and regulatory framework designed to improve the effectiveness and efficiency of statutory processes. These arrangements are required to determine the extent to which such changes are achieving their intended goals.
- There are no performance standards in place for DPCD regions to measure the effectiveness and efficiency of their advisory and statutory support services to councils.
- Timeliness targets for the authorisation and assessment of planning scheme amendments are in place however the calculation of actual performance does not measure the total elapsed time to make a decision.
- DPCD, in conjunction with stakeholders, should assume the lead role in developing a more comprehensive framework for measuring the performance of the state’s planning system. The framework should include key performance indicators, targets and reporting arrangements for assessing:
- the achievement of planning outcomes at the local and whole-of-state levels
- the effectiveness and efficiency of key planning permit and planning scheme amendment processes, including the performance of councils and DPCD in the administration of those processes
- the administrative impact on councils arising from their compliance with statutory processes and the extent to which implemented reforms have achieved their objectives and/or reduced such impacts.
- DPCD should establish an ongoing program for obtaining stakeholder feedback to support and complement the operation of the performance measurement framework.
- DPCD should review and revise the existing performance targets for the planning scheme amendment process so that they accurately reflect the elapsed time for decisions to be made on authorisations and approvals.
DPCD never adequately responded to those findings, which cut to the heart of the issues with their monitoring of the system. They should be put firmly back on the agenda.
Planning Panels as Decision-making Bodies
This is floated as on page 65, and seems to be dead-on-arrival: the government have already flagged that they don’t support this idea. That’s probably fair enough: certainly it would be a dramatic challenge to the role of planning authorities, and likely lessen the council and community’s sense of ownership of their schemes.
A New Planning Act
This is raised on pages 64-65. My reservation about this is the extent of time and resources a full redraft of the Act would divert. I would prefer to see the focus on identifying the desired systemic changes that need to occur, and then working out what the quickest legislative path to that end is. It may be, for example, that we just need to start over on the planning scheme amendment process, and that other parts of the Act just need some spring cleaning. Saying “we’re revising the whole Act” puts the cart before the horse and risks the kind of unfocussed process seen with the previous government’s never-completed Act Review.
Removing Local Policies
This idea, raised on pages 84-85, furthers the weakening of the role of local policy that has been ongoing and which was accelerated, ironically, by Making Local Policy Stronger. (I explain my point of view on that topic in my submission to the review here). It’s ironic that elsewhere in this report (page 106) they bemoan controls being dispersed throughout multiple overlays, yet here advocate gutting local policy, which is one of the key tools that allows consolidation of a range of considerations into one co-ordinated document. Unfortunately the role of local policy in the system looks more precarious than ever. It needs to be strengthened, not weakened.
The other point about local policy is that many Councils use it to cover gaps or weaknesses in the SPPF. My suggestion is that they need to beef up the SPPF with local policy-style content that covers many of these classic local policy topics: urban design, heritage, signs, sustainable design, and so on. I expand on that idea here.
Covenants
The call on page 95 for removing the need for planning considerations to be bound by covenants is really welcome. This is what I wrote on the subject a few years ago, and I still agree with myself:
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.
It’s therefore extremely disappointing that the government’s response has ruled out such a change without any further explanation.
Permit “Streams”
The discussion starting on page 130 echoes much of the Modernising Victoria’s Planning Act material, which also held this forth as a key reform. I didn’t understand it then, and I don’t get it now. We already can turn advertising, appeal rights and referrals on and off; and the complexity of assessment required is obviously variable. The permit process applicable to simple applications is already very simple at its core: you apply, a decision is made, and a permit or refusal issues. The basics of permit streaming (variable extents of notice, review, referral and assessment for different applications) therefore exist right now.
The main legislative change that could be made along these lines would be variable statutory timeframes around failure appeals to VCAT, and that has some merit (even here, though, it would be meaningless without extra resourcing to VCAT to promptly handle those appeals). But holding forth “streaming” as a substantial change to the system is in my view misleading.
Code Assess
Of course, the idea of “streams”is closely related to the idea of Code Assess, raised on page 132 and central to the government’s response to the review. This, too has always struck me as a dud.
I want to write a longer piece on Code Assess in the near future, but briefly, the fundamental problem with Code Assess is half-acknowledged on page 133 of the Committee report: where you can identify clear objective tests, these are better implemented as permit exemptions. Basically, whenever you identify something that is suitable for Code Assess as described, you are better off structuring a control to remove the application from the system completely.
Note this passage on page 135 of the report:
Where a judgement is required to be made by a decision maker on a qualitative objective or a particular design outcome, then the Code Assess approach is unsuitable and the Merit Assess stream is the appropriate processing path.
Flipping that around we see that a Code Assess application is for an application that requires no judgement by a decision maker. What on earth is such an application doing in the system in the first place? Why would we build a whole framework around facilitating applications where no judgement at all is required? What value is the permit process providing?
The other issue with Code Assess is that dreams of its effectiveness are based on a common misconception about drafting controls: that simple matters are able to be easily codified. That’s just not the case. A front fence in a heritage area, say, is a simple matter. However if you try and write an objective, black-and-white “code” for what is an acceptable front fence you’ll quickly find you have to account for an awful lot of variables and end up with something that is either: a) not very good at identifying what a good or bad fence is; or b) very complex. It will usually be both.
This is not to say such tests can’t ever be derived: my point is that finding simple, effective planning controls that neatly codify good outcomes is the whole game when it comes to statutory drafting. And once you find one, you want to get those proposals out of the system, not preserve them in some kind of tick-a-box employment program for junior planners.
I note that on page 135 the Committee argue for pilots of Code Assess. A near-identical recommendation was made in 2006 by the Cutting Red Tape in Planning review, and pilots were undertaken in 2008 with Ballarat, Hume, Maribyrnong and Port Phillip. The results of those trials were never publicly released; you have to wonder why not. Did DPCD mention these to the Underwood Committee, or provide details of their findings? Meanwhile, multiple VPP reviews have been released since Code Assess was put on the radar, and not a single one proposed a Code to use with the system.
Code Assess is, in short, a highly elaborate system without any obvious application.
Amendments to Permits and Secondary Consents
I have written at length on the issues with secondary consent and won’t repeat all that here. The Committee acknowledge the problem, and rightly say a better solution needs to be found, but the discussion suggests they misunderstand the causes of the problem, which has been the perpetuation of the secondary consent mechanism after revisions to Section 72 made it redundant.
In my view the way forward was actually clearly outlined in the final Modernising Victoria’s Planning Act papers. They called for:
- refocussing on using Section 72 as the prime means of amending permits
- allowing changes to VCAT permits by Section 72.
- increasing education so that the planning community understands that for a simple matter the Section 72 process, properly administered, is simpler than secondary consent.
(If this last point seems puzzling, see my submission to the Act Review here.)
Government Response
The government’s response is a pretty funny document, mainly because they are loathe to use the word “disagree,” so instead they “not agree.” That kind of hair-splitting is important to somebody somewhere.
The response is mainly notable for nixing some good ideas (notably getting covenants out of planning assessments, and higher planning fees for enforcement-drive applications) right at the start of the review. It’s also disappointing that Code Assess seems to be their preferred model of planning reform, given my view that it is something of a red herring.
What’s also interesting is that there is a lack of clear indication as to what happens now. The Committee clearly have an expectation of reporting again, and they are set certain tasks in the Government response. However on many things the indication is that DPCD will run with these ideas and respond: there’s something of a “thanks, we’ll take it from here” air about the whole thing. Assuming the Committee is to undertake another round of work, it would be nice to have some indication of timeframes as to when that will happen, as otherwise the forward momentum is likely to be lost.
Unfortunately, we’ve seen that happen before.
Related Items
For all my previous pieces on reform of the Victorian system, try this tag: vpp reform
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