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«December 2011 Victorian Planning System Ministerial Advisory Committee Initial Report. Geoff Underwood, Chair. Catherine Heggen, Member. David ...»

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Some submissions call for the expansion of the role and processes within Planning Panels Victoria.

The MAV encapsulates what other submissions also say:

“The Association submits that the planning scheme amendment process would be enhanced significantly if all amendments were overseen by a body with the skill set of Planning Panels Victoria. The Association expects that if such oversight was provided, that over time, the length, level of repetition, level of unnecessary policy and areas of inconsistency in planning schemes would be reduced.

In essence, what the Association is suggesting is that an ‘end user’ test be undertaken for all planning scheme amendments in Victoria. In addition, the Association suggests that Planning Panels be given a ‘riding’ function in each Planning Panel of reviewing the entire planning scheme amendment to deal with matters of drafting.” Submittors comment that there was an accumulated wealth of knowledge in relation to state and local policy and experience within PPV that should be better utilised in the planning scheme amendment process.

Submissions were also made that the responsibility of PPV should be increased so that instead of making recommendations, their conclusions and ‘recommendations’ should be determinative. That is, where a panel now make recommendations about the passage of an amendment to the relevant planning authority and the relevant planning authority may or may not adopt the recommendations, the proposition is that the conclusions and recommendations of the panel must be accepted by and be binding on the planning authority.

The Environment Defenders Office (Victoria) Ltd writes:

“Decision makers should be required to comply with panel recommendations, unless there is sound justification for not doing so, and only if reasons are given.” Submittors noted the current legislated processes requiring recommendations followed by later consideration and adoption of a panel report by a planning authority added unnecessary delay to the time for dealing with amendments, they advocate for the removal of this step in the process.

Some submissions considered the outcome of panel hearings where planning policy was the issue, meant that PPV assumed a strong leadership role in the development or interpretation of policy.

The Committee is aware that over time PPV has been asked to consider major matters of public interest and as a result has shaped planning policy. Proposals

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as diverse as lighting the Melbourne Cricket Ground, bay dredging, growth area planning via precinct structure plans, local policy and new planning schemes have been referred to panels and the outcomes have lead to the creation of policy by default.

The positive nature of submissions to the Committee endorses the manner in which PPV organises and conducts its business.

Submissions for enhancing the role of PPV include:

the early engagement of panels prior to exhibition of an amendment to detect failings or lack of strategic support for a proposal that is likely to be rejected at panel stage;

an opportunity for amendments to be vetted by an advisory division within PPV to critique and review the content;

panels to be more directive in their early consideration of vexatious and irrelevant submissions;

hearings on the papers where appropriate; and panel recommendations being determinative.

Submittors state that these types of changes would produce benefits, including a reduction in time taken for the processing of amendments, more efficient use of resources; and ultimately cost savings for all parties.

The Committee notes the various submissions to it and endorses in principle the idea of utilising the PPV ‘pool of talent’ for a wider purpose. The Committee stops short of advocating the adoption of all or any one of the suggestions at this stage because changes to the role of PPV may have flow on consequences other changes to the planning system.

KEY FINDINGS The Role of Planning Panels Victoria The Committee supports the utilisation of the expertise within PPV for a wider purpose.

Changes to the role and operation of PPV should be considered. They include

the potential for:

PPV to critique amendments at an early stage in the planning scheme amendment process;

PPV being more directive in their consideration of submissions at an early stage; and Converting panel recommendations to determinations.

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7.7 The Role of Referral Authorities Referral authorities have an important role in the planning system and the achievement of an integrated decision making process for land use and development generally.

Section 55 of the Act requires an application to be referred to authorities specified in the scheme as referral authorities. The key objective of the referrals process is to provide authorities whose interests may be affected by the grant of a permit with the opportunity to ensure that a permit is not granted which would adversely affect the authority’s responsibilities or assets.

Referral authorities include VicRoads, Environment Protection Authority, Department of Sustainability and Environment, Country Fire Authority, various utility providers, catchment management authorities and others.

It is clear from submissions that the referral authorities value their role in being able to influence and comment on planning matters early in the planning process.

Coliban Water (Submission No. 37) notes:

“The referral system provides the water corporation with an effective opportunity to participate in the state planning system. This is critical as there is no other way to be involved at the planning stage of the development and influence land use and development. The effective management of risk in relation to our assets be they the natural environment of catchments that provide vital raw water supply used for drinking or physical assets such as water treatment plant, wastewater reclamation plants and the infrastructure required to deliver water supply and sewerage services to the community, relies on involvement through referrals.” However, many council and private sector submittors expressed concern on the way the referral process currently operates particularly with respect to the performance of referral authorities regarding adherence to statutory timelines and the level of ownership and accountability taken by referral authorities regarding their particular requirements.

Referral authorities are given special status under the Act. They can mandate the refusal of an application for a planning permit. They can specify conditions which must be included in a planning permit and they can prevent the certification of a plan of subdivision by withholding their consent. This special status also imposes responsibilities on referral authorities that, on the basis of submissions, leaves considerable room for improvement.

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Referral authorities attracted interest from many submissions and were submittors themselves to this review. Referral authority processes are discussed further in Section 10.1.3 of this report.

KEY FINDING The Role of Referral Authorities The Committee considers that referral authorities are one of the key leaders in the planning system and have a corresponding responsibility in the way that they participate in the planning process. Their performance should reflect this leadership role.

7.8 The Role of other Agencies in the Planning System Some submittors suggest that DPCD, other departments, relevant agencies and referral authorities often appear to operate in isolation.

The poor connectivity between these various organisations becomes apparent in policy documents that reflect a poor integration of interdisciplinary policies.

Implementation of a planning policy can often require policy alignment with and the co operation and resources of other organisations.

An example is the relationship between the DPCD and the Department of Transport to implement integrated transport and land use policies. Greater interaction and cooperation between the various organisations is needed for better coordinated planning outcomes and policy implementation.

A number of submissions also comment on the separation between the department and some of the agencies directly associated with it, such as the Growth Areas Authority and Places Victoria.

The isolation and low connectivity apparent in DPCD’s relationships is not unique to the DPCD. Many submissions and presentations stated that planning has become reactive, restrictive and process driven. This has occurred not just because of the lack of interaction and cooperation between organisations, but because of a lack of clarity and ownership of leadership roles and management responsibilities within the planning system generally.

Conversely, the Committee makes the observation that there appear to be few advantages in combining the planning functions of DPCD with other functions of the Department, due to limited operational synergies. For example, the planning functions are perhaps not best suited with the Office of Local Government, Aboriginal Affairs Victoria, the Veterans Unit and the other various community service functions that are undertaken under the broader spectrum of the Department.

Initial Report - December 2011 67 Victorian Planning System Ministerial Advisory Committee The Committee met with the Victorian Government Architect, who expressed a desire to be more involved in planning decision making. While the Committee might see it as sensible to have the Victorian Government Architect or his or her office to comment on design issues, the Committee believes the role must be clearly articulated.

KEY FINDING The Role of other Agencies in the Planning System The Committee considers that appropriate structural and management changes need to be made to foster improved relationships between the various bodies that lead and participate in the planning system.

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8. Architecture and Structure of the Planning System

8.1 The Planning and Environment Act 1987 The early Act was a fairly simple piece of legislation. However, over a period of 25 years, it been amended on 54 occasions and reprinted nine times. Its ambit has expanded from its original role and now the Act also implements other facets of Government policy on land use and development including development contributions, state infrastructure charges, the creation of the Growth Areas Authority, provisions on restrictive covenants, metropolitan green wedges, Melbourne Airport, Williamstown shipyard, Upper Yarra Valley and Dandenong Ranges Regional Strategy Plan, Development Assessment Committee's and state significant projects.

On any analysis, the Act is now complex and puts the understanding of planning laws governing the planning system beyond the understanding of the

ordinary person in the community. As Submission 62 notes:

“The planning system needs to be written in plain English, not ‘planner speak’ or ‘legalese’.” Even for planning and legal professionals, the Act is a challenging statute to understand.

The Committee considers that the Act is in need of ‘modernisation’ and also to the extent that it is possible, simplification. The objectives of Planning in Victoria set down in Section 4(1) of the Act should also be tested to ensure they remain relevant. The Committee considers it likely that as a result of its final recommendations there will be many changes required to the Act. Rather than make the current Act even more challenging to understand, it is time for a new ‘Planning Act’.

KEY FINDING The Planning and Environment Act 1987 The Committee considers that it is time to replace the current Act with a new Planning Act.

8.2 The Victoria Planning Provisions The Victoria Planning Provisions (VPP) are established by section 4A of the Act.

The VPP is a key element of the planning system. While the Act establishes the processes, the VPP contains the provisions to which the processes are applied.

Section 6(1) 6(4A) of the Act outlines what the planning scheme for an area must contain and what it can do and what it cannot do.

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Section 7 of the Act sets out the structure of planning schemes. It must specify state standard provisions and local provisions. The local provisions must include a Municipal Strategic Statement and any other provision which the Minister directs to be included in the planning scheme.

Ministerial Direction No 12 on the Form and Contents of a Planning Scheme explains what a planning scheme must contain. It provides that a planning

scheme must comprise:

State Planning Policy Framework (clauses 11 – 19);

Municipal Strategic Statement (Clause 21);

Local Planning Policy Framework (Clause 22);

Zones (clauses 30 – 37);

Overlays (clauses 40 – 45);

Particular provisions (clauses 50 57);

General provisions (clauses 60 67);

Definitions (clauses 70 75); and Incorporated Documents (clauses 80 81).

The VPP was a considerable step forward when introduced into the planning system in 1997. The then Chief Panel Member, Mrs Helen Gibson in the Final

Report New Format Planning Schemes (April 1999) stated:

“The Philosophy of the VPP system

2.1 Philosophy of Planning Reform Planning reform is a continuous process. The planning reform program over the past six years builds on past reforms.

The past reforms include the work of the Building and Development Approvals Committee (BADAC) in the 1970’s, which aimed to improve approval processes; and, the legislative and administrative reform through the 1980’s.

Legislative reform through the 1980’s included consolidating legislation (e.g. Subdivision Act); removing obsolete legislation; and introducing new legislation (e.g. Planning and Environment Act). There was also significant reform to the organisation of government through this period, including the abolition of many quasi government organisations (quangos).

The planning reform, in the 1980’s, essentially concentrated on legislation and did not fundamentally review sub ordinate legislation, such as planning schemes.

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