It’s Not So Hard: Ten Simple Planning System Fixes

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It feels like we have gotten stuck when it comes to planning system reform.

Those with a memory of the pre-VPP system, or a passing familiarity with some other jurisdictions, will have some appreciation of our system’s core strengths. We take for granted a consistency across councils, a focus on plain English (albeit a very special VPP brand of it), a logical hierarchy of policy frameworks, and a certain rigour of approach. The VPPs were, and remain, an astonishing achievement.

At the same time, however, we never quite seem to have properly resolved the teething problems. Issues that were quickly apparent – the circuitous double-negative cross referencing, the fetishisation of vague and indecisive language, and a structural bias towards excessive permit triggers – have lingered. The various reviews of the system that have occurred tended to get stuck on a few responses (code assessment, the “three-speed” zones) which came to dominate the reform agenda for a decade and have only come to resolution last year. Other worthwhile reviews (on issues like parking, advertising signs and heritage controls) were ineffectual, only partly implemented, or disappeared completely.

Meanwhile, councils struggle to run a system that they didn’t build. They are blamed if they can’t deliver decisions in sixty days – or ten under VicSmart – but continue to wait for system fixes they have requested again and again. Local government statutory planners are experts in where the systems is breaking down, but feel increasingly disempowered in influencing system design.

There is enormous scope to ease system burden, and it doesn’t have to be hard. In this piece I have suggested ten relatively easy system fixes that could help a lot. These are not “sexy” changes; many probably seem embarrassingly mundane. Yet that’s the point. I have previously written about other more fundamental structural and cultural issues (see here), but here I want to focus on simpler red-tape cutting changes that would free up the system with relatively little impact upon outcomes. With one exception, which I will explain, I have avoided things that amount to requests for additional resourcing.

In the length given it is unfortunately not possible to get into much detail on these issues, but I hope by at least cataloguing these we can start some much needed discussion and action.

1. Exempt no-brainer parking waivers

Clause 52.06 – Car Parking remains an enormous generator of needless planning permits. Its burden falls disproportionately on small business, and the control might as well have been purpose-built to make strip shopping centres less competitive.

It is in need of a thorough review, and a persuasive case can be made for removal of minimum car parking controls altogether (see Donald Shoup’s terrific book The High Cost of Free Parking for this argument). But if we’re keeping it simple, let’s focus at least on some exemptions so that permits aren’t triggered for otherwise as-of-right uses in existing tenancies. Small sites – ie typical shopfronts – with existing buildings on them should not need a parking permit to change tenancy. An exemption along these lines would not be hard to formulate.

(While we’re at it – let’s fix the notice exemption in the clause to remove its inexplicable cross-referencing of other permit triggers. Either the parking issue is notice exempt in its own right or it isn’t.)

2. Notify only those who suffer material detriment

The “one-in-all-in” nature of the notice provisions of S.52 of the Act has sat as an obvious, eminently fixable problem for years. If one person may suffer material detriment, all adjoining owners and occupiers must be notified, and council planners will be familiar with instances where this can cause massive over-notification. The wording should be changed so that the notice obligation is simply to notify any person who the responsible authority considers may suffer material detriment. This would mean that councils can notify a single affected neighbor when this is appropriate.

3. A mechanism to fix technical errors in applications

Local government planners will know this scenario well: a consultant makes a mistake in their planning application, getting the permit triggers incorrect. The council planner needs it fixed, as they shouldn’t knowingly advertise an incorrect application. Yet the mechanism to fix this is a Section 50 amendment, which will re-set the statutory clock. The consultant is then unwilling to agree, whether out of stubbornness, embarrassment, or suspicion that the officer is gaming the statutory timeframes. At this point officer and applicant have reached the most pathetic stand-off ever.

To avoid this scenario, it would be much better to have a variation of Section 50 / 50A that would allow the officer to make simple technical corrections with the agreement of the permit applicant without consequences for statutory timeframes.

4. A proper on-hold mechanism

Similar to the above, applications frequently reach a point where proponents are making good-faith efforts to resolve an issue and need more time to do so. If we want councils to treat the sixty-day timeframe with seriousness, there needs to be a way to allow such discussions without Council being placed at risk of being subject to a failure appeal. A mechanism to suspend the clock by mutual agreement with applicants would help avoid legitimately difficult applications being rushed to decision, and increase the extent to which the statutory timeframe is seen as a fair expectation of councils.

5. Give councils tools to tailor localised permit exemptions

The new zones, DDOs, and NCOs give councils multiple models to customise development standards. But where is the tool to identify suitable development models and get them out of the system completely using localised permit exemptions? I’ve suggested a model for such a system based on “Preferred Development Overlays.” More detail on this idea can be found at www.sterow.com/pdos.

6. Reverse the bias of overlays to over-regulation

Most overlays currently default to an “all buildings and works need a permit” control, with schedules having to list everything that doesn’t need a permit. This embeds a bias towards over-regulating into the system at a structural level. It would be much better if those drafting overlays had to specifically “opt-in” permit requirements and think more explicitly about which buildings and works they really wanted to capture. (This is a point on which my views were quoted at some length in the Underwood Review: see pages 105 to 106 of that report – which can be found here –  for more explanation of this issue.)

I once thought fixing this would be difficult, as I assumed that changing the header of the overlay would have to coincide with a simultaneous review of every schedule. However a workaround does exist, which is to have a staggered structure in the overlays. So the parent provision would have wording along these lines:

A permit is required to construct a building or construct or carry out works where the schedule to this overlay was introduced before [date]. This does not apply if a schedule to this overlay specifically states that a permit is not required.

A schedule to this overlay introduced after [date] may specify permit requirements for buildings and works.

Yes, it’s clumsy, but at least would allow us to start transitioning to a scenario where each overlay had to consciously opt in buildings and works, not opt them out.

7. Statewide local policy

While the recent review of the (S)PPF had much to recommend it, it did involve the collapse of the traditional clause 21 / clause 22 distinction between local strategy and statements of local policy. Clause 22 policies are often some of the most focused and specific parts of the scheme, and I have long felt that we needed an equivalent for the state planning policy framework.

Councils currently cover many issues of universal applicability in their local policies: things like advertising signs, heritage, urban design, and discretionary uses in residential zones. Given these are universal issues, it highlights the failure of statewide provisions to communicate useful guidance on such topics. The current approach to writing the SPPF and particular provisions is excessively vague, and local government is currently having to close the gap with local policies about universal principles.

The Department should audit these recurring local policies, identify the useful provisions, and weave them back into schemes through the SPPF and particular provisions. This would improve consistency and coverage of such issues, lead to better understood policy, and free-up councils to focus on policy that addresses local circumstance.

(I wrote more about this idea in my broader piece on system reform here).

8. Get rid of clause 52.27

The table of uses identifies situations in which it is considered a land use assessment of licensed premises is needed. So why do we have clause 52.27? It seems perverse to have a permit requirement triggered purely by the need for a different kind of permit.

For a while it seemed like cumulative impact assessments were the identified need. Yet experience has suggested that comparatively few clusters have serious cumulative impact problems: it is therefore probably better to move to locationally based tools for problem areas rather than the current catch-all assessment model. On the packaged liquor front, too, the Hunt Club decision has left councils with little basis to undertake the social impact assessment the permit trigger was designed to allow.

This is not to deny the importance of the issue of social harms of liquor. However the current duplication just blurs lines of responsibility. There is a need to make sure that there is adequate scope for the social harm question to be assessed, but Councils can’t do this with no policy framework and no backing from VCAT to be involved in the space. There is no point maintaining a permit trigger just to pretend the issue is controlled.

9. Rethink our policy language

The practice note Writing a Local Planning Policy currently states:

Statements explaining how a responsible authority will exercise its discretion should be expressed as follows:

‘It is policy to:

• discourage industrial activities unless they are associated with agricultural activities in the area.’

Starting the statement with ‘It is policy to…’ invites a verb such as: encourage, discourage, consider or assess. This form of words is preferred over ‘It is policy that…’

This is our planning system failing at the atomic level: its verbs. Planners don’t encourage or discourage anything.  They make decisions to approve or refuse things. Policy needs to be no more or less than the clearest possible indication that we can give of which it will be.

The entire approach to VPP drafting needs revisiting to eliminate such intentional fudging and weasel words. We can be more specific.

10. Resource VCAT properly

I have otherwise avoided resourcing issues as it’s usually a lazy way out when it comes to suggesting improvements. However I think VCAT is a unique case because of the numbers involved.

According to their annual report, $3.8 billion dollars of development passed through the Planning & Environment List in 2013 / 2014. Against that, VCAT’s total operational expenditure was $45 million, $12.7 million of which was specifically associated with the Planning & Environment list.

In the scheme of the state budget these latter numbers are embarrassingly tiny. Given the economic worth of development parked in the list, and the broader system benefits that flow from a healthy and speedy Tribunal, a significant improvement to the resourcing of VCAT would represent exceptional value for money.

Conclusion

These suggestions just scratch the surface. I could add more; and most practitioners could rattle off a list of their own. Indeed, opening up a better process for the Department to accept and respond to such stakeholder suggestions (a recommendation of 2008 Auditor General’s review) would in itself be a worthwhile reform. The point is that we are a long way from needing to make really tough calls to improve system performance. The tree is covered in low hanging fruit.

It isn’t hard. Let’s get going.

Originally published in the February 2015 Planning News.

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