This post was originally written for the August 2013 issue of Planning News and hence was a bit constrained for length. My full submission, with quite a bit more detail, is here.
The new VicSmart provisions, announced during July and currently open for comment, are the culmination of a long push towards implementing two closely related reforms: code assessment and a fast-track permit process. These ideas have been central to the planning reform agenda of DTPLI and its predecessors for some time. August marks seven years since code assessment was put on the reform agenda by the Cutting Red Tape in Planning report, and ten since Better Decision Faster floated a “short permit process.”
Throughout that time the measures have been sold in terms that make them hard to argue with. Certainty! Speed! Efficiency! Yet in the absence of the specifics it has been unclear how the Department would resolve the challenges to realising such a best of all-possible-worlds outcome.
Now, with the release of draft provisions, we have our answers. VicSmart is code assessment… only without any codes. And Councils are expected to drive this engineless car very fast indeed.
The Unresolved Problem
The key unresolved problem with code assessment lies in one of its fundamental assumptions: that there is benefit in creating a permit process for assessments that can be reduced to a series of objective tests.
It is worth remembering where we started. This is how Cutting Red Tape in Planning described code assessment:
…a code assess track can be used for development assessed against standard criteria where it is appropriate that the development can always proceed if the criteria are met… For a code assess track to operate successfully it must be clear that it applies before an application is submitted; otherwise, there is confusion as to whether the standard can be varied and whether notification is required.
The criteria must be able to be clearly assessable against prescriptive or performance standards. Any debate about compliance would undermine any potential benefits associated with the code assess track…There is significant potential for improvement in assessment timeframes with a code assess track because assessment is against objective standards.1
The nagging question about such an assessment is what such an application process is achieving. If the development can “always proceed” and the tests are “objective standards” without potential for “any debate about compliance,” why does it need a permit? Why not just frame the standards as a permit exemption?
We actually have a number of planning provisions that work in such a way: the clause 52.11 Home Occupation provisions, for example, as well as other clauses that cross-reference codes such as those for telecommunications facilities and tennis courts. While such exemptions live or die on the clarity of the code in question, my feeling is overall they work well. Properly framed, they achieve the ultimate efficiency: no permit required.
The planning permit process should be a system triggered only where some kind of meaningful assessment is warranted. Applications that require no meaningful assessment are examples of system failure, not a class we should be at pains to build processes for. We should get them out of the permit system. That requires a commitment to thorough clause-by-clause VPP review, rather than the procedural focus of the code assessment reforms thus far.
The Missing Codes
Starting with detailed VPP reviews would have allowed us to cease discussing the merits of a code assessment in a vacuum. We could have drafted the codes, and if they truly could be reduced to objective standards, framed those as permit exemptions. If they proved a little more complex then that, we could have used them as traditional VPP clauses. Those might have been exempt from notice and review exemptions, as is already the case for many classes of simple applications (contrary to the oft-repeated straw man assertion that all applications currently follow a single permit process). And then, once the new clauses had been introduced, we could have assessed whether further legislative or regulatory change was required to, for example, apply different decision timeframes or delegation procedures to certain types of application.
That would have allowed the benefit of the codes to flow more quickly, and also allowed an informed judgement as to what timeframes were reasonable to apply to the application classes.
This is essentially the course of action recommended by Cutting Red Tape in Planning all those years ago. And it was at least partially pursued: in April 2008 the Department advised that they had undertaken code assessment trials with Ballarat, Hume, Maribyrnong and Port Phillip.2 Yet no formal report was produced as a result of that work, and details of how the pilots went have never appeared in any subsequent material released about code assessment. Indeed, in 2011 the Underwood review called for pilots in almost identical terms to the Cutting Red Tape review; when asked, DPCD confirmed that details of the pilots already undertaken had not been provided to the Underwood committee.
Rather than resolving the outcomes of these pilots, or publicly releasing any codes for comment, we have instead pursued systemic changes first. The assumption seems to have been that defining codes was a secondary problem to be sorted out later.
This ignores the fundamental queries already noted, as well as the practical difficulties of drafting such provisions. “Straightforward” is not the same as “easily codified.” Provisions that draw clear, simple objective lines that lead to good outcomes without creating poor ones are terrific, but not easy to create. They require care, consultation and road testing. If you want to speed up the assessment of simple matters, such provisions are not an afterthought. They are the whole job.
The VicSmart Provisions: Giving Up on Code Assessment
The new VicSmart release has made it clear how the neglect of the codes will be resolved. VicSmart abandons the notion of objective codes.
As noted, in 2006 the talk was of “objective standards” that left no room for doubt. That was still the case in the 2009 Modernising Victoria’s Planning Act material, which spoke of assessment only against “clearly defined codes and requirements” or “specified technical standards or criteria.”3 In 2011 the Underwood review the suggestion was that “in all instances the proposal would need to comply with clear quantitative criteria.”4 Even last year’s VicSmart release talked of “clear pre-set assessment criteria,” although in retrospect the shift away from words such as “objective” or “quantitative” should have tipped us off to where we were headed.5
The supporting material for the current VicSmart release now admits:
Unlike a code, the assessment will be performance-based in accordance with the principles of the VPP. In all cases, the decision maker will need to judge an application on its merits.
Looking through the draft provisions makes it clear that this is the peculiarly Victorian definition of “performance-based,” where performance is not measured against a quantifiable performance standard (such as a measurable extent of overshadowing) but instead against broad decision guidelines that are at once both vague and statements of the obvious.
Fences, for example, are to be “appropriate to the neighbourhood character and the site,” presumably to clear up the popular misapprehension that the planning system favoured inappropriate fences. The fence example is doubly strange because it is one instance where we long ago identified a nice clear objective criterion and embedded it in the system as an exemption, making front fences below 1.5m as-of-right in most cases. In this case, we are now applying VicSmart to a situation where applications have failed the objective measure we decided upon.
In other cases, VicSmart creates weird, looping cross-references. For low-cost works in industrial zones, for example, VicSmart constrains the considerations to only those matters listed in Clause 93.05 – but then that clause directs the decision-maker to consider seven separate non-VicSmart clauses. These are, of course, the clauses a pre-VicSmart application would have been judged against. What has been gained by such an exercise?
This layering of controls actually considerably increases the complexity of administering simple applications. Interpreting the buildings and works trigger in a heritage overlay already involves a circuitous back-and-forth between the words of the overlay, definitions in the scheme, definitions in the Act, and the exemptions of Clause 62. Now, on top of that, planners have to cross-reference another set of criteria elsewhere in the scheme outlying types classes subject to VicSmart and activating a series of separate considerations that are essentially the same as what they currently use, only – infuriatingly – just a little bit different.
In come cases, VicSmart fast-tracks assessment classes the Department has failed to fix. For years practitioners have sought meaningful reform of the parking provisions to reduce the wastefulness of otherwise as-of-right tenancy changes in established centres needing planning permits for parking waivers. The review of those controls took eight years, but failed to make the changes to the controls that would have seriously relieved the problems. Instead, now, councils must simply fast-track these applications under VicSmart.
Such examples highlight the failure to honour the trade-off that was supposed to underpin code assessment. The Department would build the codes, and councils would use them to deliver faster applications. As the Underwood review put it:
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.6
VicSmart contravenes this principle.
The VicSmart Process
It is not in itself ridiculous that a short permit process stream could be de-coupled from code assessment. Shorter permit processes (without notice, referrals, or decisions by councillors) already occur for a great many applications, and there is a case to be made for reduced statutory time frames for certain simple matters. Yet the proposed VicSmart process shows a poor understanding of the distinctive challenges of minor permit applications.
The most obvious example is the further information process. Minor applications are frequently poorly documented, and getting the information in an approvable form is a large part of the challenge. VicSmart’s response to this dilemma is to forbid councils formally requesting further information. Councils can request it informally, but no matter how legitimate their request, or how long the applicant takes to honour it, the application will tick over its statutory timeframe ten business days after lodgement.
If councils are not to be subject to numerous failure appeals, they may need to refuse a lot of applications on the basis of insufficient information. This will make for some exciting PPARS data, but hardly serves the purpose of the provisions. VCAT may be in for interesting times, too, with a newfound exposure to countless trivial applications. There is little evidence in the released material that the resourcing implications of this have been thought through.
Various Councils, including my employer, have highly successful fast-track application models. The Department did consult Councils about how these worked. Yet the lessons did not seem to have been learned.
Successful fast track processes require attention to the straightforward assessments that occur across all application types. They require discretion, including the flexibility to opt applications out of the fast-track process where information is not provided or unexpected complications occur. They could be assisted considerably by serious and comprehensive VPP reform that meant schemes triggered fewer trivial applications and provided clearer guidance for decision-makers.
VicSmart does not assist these efforts. The objective codes that were supposed to underpin code assessment have not materialised. The Underwood review, which proposed the widespread auditing of VPP provisions that could have achieved genuine efficiencies, has seemingly been wound down. Instead, we have an inflexible and needlessly complicated system that will make the system harder rather than easier to administrate.
You can find the various older review documents through my planning history database.
Image by Lorraine Phelan. Click it for details.
1. Department of Sustainability and Environment, “Cutting Red Tape in Planning: 15 Recommended Actions for a Better Victorian Planning System” (Victorian Government, August 2006), 7.
2. Department of Planning and Community Development, “Reform of the Statutory Planning System in Victoria Status Report,” Planning News 34, no. 3 (April 2008): 14.
3. Department of Planning and Community Development, “Modernising Victoria’s Planning Act: Response Paper No. 3 – The Permit Process,” August 2009, 3–4.
4. Geoff Underwood et al., “Victorian Planning System Ministerial Advisory Committee: Initial Report” (Victorian Government, December 2011), 135.
5. Department of Planning and Community Development, “VicSmart: A Simpler Planning Permit Process” (Victorian Government, June 2012), 4.
6. Underwood et al., “Victorian Planning System Ministerial Avisory Committee: Initial Report,” 135.