The Wrong Idea Not Implemented Properly (Submission on VicSmart)

Wile E. Coyote, Super Genius!

This is my submission to the recent VicSmart review (with a few minor corrections). Obviously it is partly based on my Planning News article “Breaking the Land Speed Record in an Engineless Car,” but it is considerably expanded.

Introduction

The new VicSmart provisions are the culmination of a long push towards implementing two closely related reforms: Code a\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. It is seven years since Code Assessment was put on the reform agenda by the Cutting Red Tape in Planning report, and ten since Better Decisions Faster floated a “short permit process.”

Throughout this period there has been a lack of clarity about how code assess and a short permit process would work. These measure have been sold in reviews such as the Modernising Victoria’s Planning Act work by floating a false idea that the system currently operates on a one-size-fits-all model. This is not the case, as myself and many other submitters to previous reviews have pointed out. The system currently includes various systemic measures to fast-track simple matters (permit exemptions, notice exemptions and the like) and Councils routinely employ streaming measures of various degrees of sophistication.

The confusion on such points, and the lack of focus throughout the refinement of Code Assessment on drafting specific codes to use with the system, has now led to a seriously compromised fast-track process. The proposed VicSmart measures show a poor understanding of the distinctive challenges of simple / fast-track statutory planning work. They create unreasonable demands on Councils while not providing Councils the tools that will be genuinely helpful in pursuing applications more quickly. Instead they create additional complexity that will actually hinder existing successful fast-track measures.

VicSmart as currently released will be counterproductive. It should be abandoned in favour of more genuinely facilitative measures.

Successful Fast-Track Systems

Simple applications present a number of distinct challenges, particularly relating to provision of adequate information, given the untrained nature of many of these applicants and their (legitimate) expectations of a simple resolution. However, many Councils – including my employer, Moreland City Council – have effective fast-track procedures.

Key to such systems are discretion and flexibility. Councils need to proactively identify simple matters across all application streams. At the same time, however, they need the ability to “opt out” items where unexpected issues arise. Experience shows that unexpected complexity can arise across all application classes. If this occurs and the process does not allow for a more measured resolution of these issues, the expectation of fast-track turnarounds is likely to result in significant angst for the customer and / or resource-intensive processing for the Council.

The importance of flexibility and discretion, and the difficulty of reliably codifying the boundary between simple and complex applications, means that top-down, inflexible mandatory fast-track provisions are inherently problematic. It is considered more productive to focus on broader systemic reform and the development of model administrative arrangements to encourage better practice at local government.

The System Fixes that Would Genuinely Assist in Fast-Tracking Simple Matters

As mentioned, effective fast track processes occur at many Councils within the current framework. However the effectiveness of these measures could be enhanced with various systemic measures. These would include:

  • Development of more effective objective measures (equivalent to the codes originally proposed for code assessment, but never developed) throughout the VPPs and inclusion of them as permit exemptions (not a code assess stream).
  • Targeted extension of notice and third party exemption.
  • Allowing targeted advertising under Section 52 of the Act, eliminating the current “one-in-all-in” problem so that officers may advertise to a single targeted party.
  • Removal of selected referrals from the planning system. Many permits triggers that directly align with referral requirements (notably development applications under the SBO and VicRoads road-opening permits) would be better handled as applications directly to the authority, outside of a planning permit process.
  • Review and elimination of permit-triggering provisions that add little value. The parking and liquor provisions, in particular, both generate many applications with little merit and are badly in need of review.
  • Targeted statutory timeframes (perhaps 30, 60 and 100 days) for different classes of application, with the shorter timeframes established after a detailed review of the operation of the clauses and the resulting complexity of applications.

Some of these matters have been recently but ineffectively reviewed (notably parking, which was the subject of an eight-year review that made little improvement). Others were not pursued when the chance existed (such as the Section 52 notice issue). All could have been pursued under the now-disbanded Underwood review. This presented far more opportunity for effective reform than the measures now being pursued.

The Furphy of Code Assessment

While the words “Code Assessment” have disappeared from the VicSmart material, this is clearly an iteration of the Code Assesment work (I note Moreland was participating in a “Code Assessment Working Group” as recently as early 2012, and it is clear this work informed the VicSmart material).

At many points in the process myself and other parties pointed out the problems of the Code Assessment Model. (The Underwood review report, for example, clearly reflects feedback from Councils to this effect on page 133.) However these problems were seemingly not confronted early enough, leading to the current situation where VicSmart essentially comprises the original Code Assessment model, implemented without any of the proposed objective / quantitative codes actually having been developed.

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. Cutting Red Tape in Planning described code assessment in the following terms:

…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 problem with this formulation is that it fails to explain what purpose such an assessment serves. 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? Many provisions work in such a manner already, and this is much more efficient than a dedicated code assessment stream.

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, along the lines already suggested, rather than the procedural focus of the Code Assessment / VicSmart reforms thus far.

The Code Assessment review failed to confront this problem and proceeded with an extensive process-based review to build an application stream for a class of applications created by codes that had still not been formulated. Attempts to identify suitable streams were still underway as recently as early 2012. Now, at the end of the process, the Department has finally acknowledged that a fast-permit stream built around objective codes is nonsensical, and these will be traditional merit-based assessments. Yet the faster timeframes required of Councils under the code assessment model are still expected.

VicSmart has therefore failed to deliver on the trade-off inherent in the original Code Assessment proposals. The Department was to build the codes, and councils would use them to deliver faster applications. If the Codes cannot be delivered as promised, the process proposed is inappropriate. 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 [ie a conventional 60 day assessment process] is the appropriate processing path.2

VicSmart contravenes this principle. Having failed, after seven years, to execute their end of Code Assessment it is not acceptable for the Department to now simply throw the challenge of delivery onto Council without effective tools to assist them.

The VicSmart Process

It is of course possible that an appropriately implemented shorter permit process could work in the absence of 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. As mentioned, a 30, 60 and 100 day hierarchy for differing complexities should be workable if the classes were worked through carefully and with genuine consultation.3

However, the proposed VicSmart process shows a poor understanding of the distinctive challenges of minor permit applications.

Further Information

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.

There seems to be an expectation that it this issue may be resolved through checklists and informal requests. This reflects the apparent lack of operational experience underpinning the preparation of these provisions. It should not need saying that such measures are routinely used at Council. Checklists and informal phone discussions have their place, but they are not as effective as the VicSmart material seems to envisage. They do not magically result in correct information being applied, and a formal further information request serves a vital function where informal requests are unsuccessful or not delivered in a timely manner.

The absence of a workable way to resolve further information requests will likely Iead to additional refusals based on inadequate information and / or failure appeals against unresolved applications. Neither outcome is consistent with the principles of encouraging fast, simple assessment of straightforward matters.

The provisions will therefore likely lead to far greater exposure by VCAT to countless trivial applications. There is little evidence in the released material that the resourcing implications of this have been thought through. VCAT is severely under-resourced, so its increased involvement in trivial matters seems ill-advised.

It should also be noted that the proposed elimination of further information requests renders the Act’s lapsing provisions ineffective for VicSmart applications.

It is noted that the extensive listing of information requirements seems to be based around a desire to prohibit Councils from asking for anything not listed. This is an example of the parts of the process not fitting together, since Councils can’t ask for any information, so the point is moot. If further information requests were allowed back into VicSmart, but subject to restrictions as to what may be requested, the risk is created that legitimate requests required in unusual circumstances would be prevented. For example, if Council needed a legal opinion from the applicant (for example relating to whether a covenant were breached) this would not be included.

At the absolute minimum, VicSmart needs to be revised to allow for some combination of further information requests, rejection of incomplete applications, or opting out inadequately documented applications from VicSmart.

Timeframes

When dealing with short timeframes (less than fifteen to twenty days), every additional day saved becomes harder than the last. The ten business days proposed is considered very tight, and is likely to create unreasonable expectations from applicants (especially given some of the ill-considered and overly complex classes included). Fifteen days would be more appropriate.

Structure of the VicSmart Provisions

The provisions are awkwardly bolted on to the back of the scheme. This is seemingly a result of the attempt to package VicSmart / Code Assessment as a distinct “product” rather than pursuing more thorough clause-by-clause maintenance and simplification of existing VPP provisions. Instead of tidying up the core of the system, VicSmart has been grafted on to selectively override it. This is a simpler drafting exercise, but comes at considerable cost for end users of the system.

There is an inherent incongruity in a simplification measure that is achieved by adding considerable extra content to schemes. More seriously, this structure will dramatically increase the complexity of administering simple applications and handling planning queries. It requires tortuous cross-referencing and looping through what is already a complex statutory structure. For example, simple permit triggers an already involve circuitous back-and-forth between the provisions of zones, overlays, their schedules, definitions in the scheme, definitions in the Act, and the exemptions of Clause 62. Adding a cross-reference to VicSmart, which then imposes similar-but-slightly-different requirements, simply increases this complexity still further. This makes simple planning enquiries much harder to resolve and increases the chance of error when providing advice. At the same time, it does little to make applications easier to process.

This is poor drafting. A focus on redrafting VPP individual clauses so improvements were embedded in the clauses would have been far more effective.

Application Classes

Time does not permit a full clause-by-clause assessment of the proposed application classes and provisions. However a few key points are noted below.

Front Fences

The 1.5m benchmark for front fences is an example of an objective measure being effectively used as a permit exemption, since such fences are usually as-of-right. So why would we fast-track non-compliant fences? Are these to be fast-tracked refusals?

Buildings and Works in Commercial and Industrial Zones

That such applications are quite likely not simple is highlighted by Clause 93.05 cross-referencing seven other particular provisions for assessment (nine if Clauses 54 and 55 are counted). It is hard to see that anything has been achieved by opting out such applications into VicSmart if the “limited assessment criteria” include a reference back to enormous swathes of the scheme. The clauses cross-referenced are those that would currently apply, meaning that any seeming simplification is in fact illusory.

Buildings and Works Under a Heritage Overlay

These applications are frequently complex, heavily contested, and require provision of expert advice. Many such applications are not simple and are not feasibly resolved in ten days.

The importance of flexibility and discretion is particularly clear for this class of application: many are indeed simple and worthy of fast-tracking, but many are not, and it is difficult to codify the boundary between the two sets of applications.

Development in a Special Building Overlay

Existing fast-track measures used by Moreland and other Councils are very effective in resolving these applications, and do not require any further alteration or complication of the controls. In any case, these applications should be taken out of the system, and replaced by a land data based alert system for building surveyors that triggered applications direct to the referral authority. When the planning process is used for such applications local government effectively becomes a typing pool for referral authorities. There is clear opportunity for improvements through more far-sighted reform in this area than simple fast-tracking.

Requirements for Car Parking

It is infuriating that the Department took eight years to review Clause 52.06, only to shirk making truly meaningful reform, but now sees the applications resulting from this antiquated and ineffective provision as candidates for fast-tracking. Proper reform of Clause 52.06 would see many classes of parking waiver removed from the system altogether.

It is also incongruous that applications for parking waivers will be treated quite differently depending on whether or not an unrelated clause triggers permission. How does this affect the merits of the parking waiver? This echoes the logic of the recently introduced notice exemption for applications “solely” for car parking waivers, which has been heavily criticised by VCAT and others. This approach is contrary to proper drafting and decision-making practice, where the merits of each permit trigger and clause stand alone.

Threats to Existing Processes

As noted, many Councils have existing fast-track provisions which operate well. VicSmart not only fails to learn from these practices, it actively cuts across them. VicSmart potentially compromises fast-track systems by:

  • Imposing rigid and inflexible provisions, preventing Councils from “opting out” unexpectedly complex applications.
  • Including overly complex matters such as industrial buildings and works and some large parking waivers in the fast-track stream, which threatens to clog fast track officers and breed resource-sapping conflict with applicants.
  • Removing tools such as further information requests that are vital to the management of small applications.
  • Potentially exposing Councils to higher VCAT caseloads as a result of appeals against failure and refusal of inadequately documented applications.
  • Making the scheme generally more complex and harder to administer through the cumbersome structure of the provisions.

VicSmart is therefore likely to work against the very aims it purports to serve.

Conclusion: A Better Way

It is tempting to imagine a better approach that might have been taken to these reforms. The current proposals are very top-down and seem based on assumptions that Councils do not know how to administer planning schemes properly. The underlying assumptions of this set of reforms are insulting to planners working in the local government sector.

The Department should recognise that Councils are the experts in dealing with small matters (and administering planning schemes more generally). It should listen to the feedback received from Councils and council officers about these provisions, rather than continuing to disregard it. The Department should also show some faith in Councils to use discretion appropriately. By attempting to force the hand of underperforming Councils, these reforms will impede those exercising discretion responsibly.

It is of course the case that there is great variation in the quality of Council planning departments and individual Council officers. It is recognised that the good work done by some Councils in fast-tracking simple matters is not shared by all. However, there are better approaches to this problem. The Department could have pursued a co-operative approach working with Councils that had good fast-track models, identifying a shared set of administrative arrangements. This could then have been “evangelised” throughout the state as a shared initiative between the Department and groups such as PIA and MAV.

Separately, the Department could have pursued detailed VPP reform based on the categories of application identified by Councils as most problematic (for example, the SBO fast-track process should have been a signal to review the need for the existence of that control). There are many system fixes that could be undertaken by the Department that would significantly aid in resolving simple matters and that have not been delivered despite many years of advocacy. I have mentioned several particularly achievable reforms in this submission. Consultative reforms such as the now-defunct VPSMAC review had the potential to achieve wider system improvements.

Such an approach would have been far more productive than seven years lost pursuing this misguided package. The VicSmart provisions betray a failure to genuinely consult and show poor understanding of the challenges facing planners attempting to administer VPP schemes. By failing to include any objective codes, they are directly contrary to the original founding premises of the review from which they emerged. They are likely to be ineffective at best and counterproductive at worst.

I urge the Department to genuinely listen to feedback on these reforms and pursue a more productive and consultative course to achieving genuine and meaningful system reform.

Notes

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. Underwood et al., “Victorian Planning System Ministerial Avisory Committee: Initial Report,” 135.

3. The lengthened timeframe for larger matters could – counter-intuitively – aid timeliness across the board by increasing the sense amongst all practitioners that statutory timeframes were a reasonable expectation in most instances. Currently, the feeling that 60 days is genuinely inadequate for some matters I think encourages an expectation that it is acceptable to routinely exceed the timeframe.

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One Response to The Wrong Idea Not Implemented Properly (Submission on VicSmart)

  1. KICHIZO says:

    “So as far as you’re concerned, George Wright is as guilty of murder as the guy who actually fired that bullet,” said Spencer.

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