My Request for Apple’s Federation Square Plans

Extract from the Departmental Practice Note about Incorporated Documents

Extract from the Departmental Practice Note about Incorporated Documents

The Age has today reported that the government has said it won’t release the plans for the Apple Federation Square development. This is despite the plans being referred to in the incorporated document (which exempts the store from the need for a planning permit, so effectively acts as a planning approval.) As I have argued in a series of tweets (starting here) this morning, that’s outrageous. The plans are necessary to apply the planning control, and hence need to be publicly available. You can have secret plans, or you can have a planning approval, but you can’t have both!

I initially thought about lodging an FOI request for the plans. However I have not opted to do that in the first instance. Unfortunately, my experience is the FOI process causes the Department to clam up: the request gets referred to their lawyers, and then they can play out the statutory timeframes. (See here for an example of previous FOI game-playing by the Department). For the moment, therefore, I’ve stuck with a request for a copy of the plans that points out their obligations to release the documents.

Here is what I sent this afternoon:

Dear State Planning Services,

Hi!

I’m sure you are aware of the publicity about the non-release of the plans for the Federation Square Apple store, which has received some media attention this weekend.

I would like to request a copy of the plans referred to in the Incorporated Document to Amendment C314. Specifically, I request the plans and documents referred to at clause 4.5 of the relevant incorporated document.

I note that the Department (on behalf of the Minister) has obligations to make these plans available under ss 41 and 42 of the P&E Act. They fall within the definition prescribed documents under s 40(1) of the Act, and clearly should have been lodged with the amendment, which in turn makes them subject to ss 41 and 42 which outline obligations to make amendments and scheme documents available.

Prescribed documents are defined in s 12 of the regulations and include “any document applied, adopted or incorporated” into the scheme. Even if it were argued that these plans were not incorporated, because they were left out of the incorporated document, they have clearly been applied. The functioning of the exemption created by the amendment cannot be interpreted without them. The plans define the scope of a permit exemption and the obligation to release them is clear.

I would add that the plans should clearly be part of the incorporated document in any case. Under Planning Practice Note 13 a document must be incorporated if it is “essential to the administration or enforcement of the planning scheme,” if it is “necessary to determine the extent of a planning control,” or if it will be “used to guide the exercise of discretion by a planning authority.” All of these criteria clearly apply to the plans, and they therefore should have been incorporated.

I also note that the practice note also states that incorporated documents “must be publicly available for inspection with the scheme” though this of course simply reflects the obligations that already exits under the Act.

As a simple matter of logic, I would add that it is nonsensical for the interpretation of the planning scheme to be dependent on secret plans.

I therefore trust the Department will fulfil its obligations under the Act and make the plans available.

I look forward to your response.

Regards

Stephen Rowley

I also note that City of Melbourne have the same obligations (since they are the responsible authority), though I’ve chosen not to go that way: they seem to be stuck in the middle of this.

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