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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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“The significance of the Municipal Strategic Statement (MSS) and the ability to use the MSS to justify decisions on planning permits applications and to influence amendments to the planning scheme is supported by Council. Whilst there have been poor examples of complex and verbose MSSs in planning schemes, they provide a sound opportunity to express local policy directions and reflect local strategic planning outcomes.” Most submissions appear to be consistent in their view that Municipal Strategic Statements need to be reviewed in relation to their role and function in the planning system.

Issues relating to the review of the Municipal Strategic Statement are

highlighted in the Shire of Melton’s submission (No. 304):

“The Shire of Melton recently initiated a review of its Municipal Strategic Statement (MSS) which was incorporated in the Melton Planning Scheme in 1998. The review of the MSS highlights some of the problems facing Council’s when updating its local content in its Planning Scheme.

Upon completion of the extensive review and re write of the MSS (which is a lengthy and costly exercise for Council) a substantial change was made to the Urban Growth Boundary (UGB) which rendered the new MSS redundant. State and Local policy up to this time was that the Green Wedge physically separated Melton Township from Melton’s Eastern Corridor (Caroline Springs / Burnside), and that the Wedge would be maintained and that the Melton Shire’s growth would reflect this physical separation. The change to the UGB now envisages a continuous growth corridor out to Melton Township.

Initial Report - December 2011 77 Victorian Planning System Ministerial Advisory Committee This highlights the length of time and administrative burden upon Council in reviewing its Scheme, and the lack of communication from State Government regarding an upcoming critical change of state policy affecting a local area. If Council had been made aware of the change of State policy early enough, the re write of the MSS could have taken into consideration the change of approach by the State Government regarding the UGB.

Council is now needing to initiate a new review of the MSS, however it is wary of this given the impending review of the Green Wedge and Urban Growth Boundary, Metropolitan Development Strategy, and Developer Contributions, as all of these reviews will have substantial impacts on the MSS and its application. The cost and time burden experienced by Local Government in the reviewing of its Planning Scheme in the context of changing State policy direction should be acknowledged.” The submission from Melton Shire Council is supported by the City of Greater Geelong’s submission (No. 102), which makes the following comments in

regard to Municipal Strategic Statements:

“Four year reviews by Councils of Municipal Strategic Statements, which should coincide with four year Council election cycles, thereby allowing newly elected Councillors to review the MSS early in their elected term.

Major MSS reviews can take many years to complete. For example the MSS review by the CoGG, took 3 years which included 1 year of waiting approval from DPCD. There needs to be a more efficient process for such reviews and more support from DPCD.” Submissions by other parties comment on how the MSS is being used in practice. For example, the Shire of Mansfield (Submission No. 35) is concerned

with the broad nature of the objectives outlined within the Statement:

“Focus must be placed back onto local policies to effectively guide local decision making, rather than replacing policies with broad statements in an MSS. MSS is, by nature, a strategic overview and is less useful when requiring detail on exercising discretion for day to day decisions.” Other submissions make comments and recommendations about the functionality and relevance of Municipal Strategic Statements, such as that put

forward by the Property Council of Australia:

“MSSs should provide the local content for strategic planning, whereas the regional planning policies should address policy issues relevant to the region regardless of municipal boundaries. This recommended approach would remove the plethora of local planning policies that Initial Report - December 2011 78 Victorian Planning System Ministerial Advisory Committee have been ‘bolted on’ to planning schemes and have become a major cause of confusion, complexity and uncertainty in the decision making process.

A full review of each MSS should take place as part of a five year cycle and councils should be fully resourced to ensure this occurs. MSSs should contain a minimum of historical context (two to four pages) sufficient only to provide a reference point for the implementation of local policy. The rest of an MSS should comprise specific local policy and action statements which are to guide discretion to achieve specific outcomes during the five year life of the MSS. Policies and action statements should be clear and spatially specific in their application.

Recommendations:

Municipal Strategic Statements should be reviewed on a five yearly cycle and councils must be adequately resourced to ensure this occurs.

Municipal Strategic Statements should provide the local policy for each municipality. Each Municipal Strategic Statement should articulate the key issues, challenges, opportunities and initiatives for each municipality aligned with municipal targets for growth and development and where such growth is to be accommodated.” The Committee considers that it is time to review the role, structure and content of the MSS. Specifically, a key question is whether the current structure of the MSS contributes in a positive way to better decision making or whether its role is more relevant to the content of the planning scheme. It is





noted that in a recent VCAT case6, the Tribunal commented:

“I have already mentioned that the first three grounds refer to or arise from cl 21.06 1 in the MSS. This clause, in the MSS, deals with land uses. It runs to nine pages. The MSS is constituted by clauses 21.01 to

21.13 inclusive. That is 13 different clauses containing varying numbers of pages. The MSS is supposed to be a brief overview, not an account of the local planning policy provisions. They are supposed to appear in cl 22. I was not referred to cl 22 in the current case. It seems that there will be a need, upon review of the MSS if not before, to revise it to fulfil its proper role allowing local policy provisions to appear in cl 22.” The Committee also questions how well the MSS does what is expected of it in Clause 20.01 of the planning scheme.

6 Sanders v Bass Coast SC (2010) VCAT 782 (5 May 2010)

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The Committee also considers that it is necessary to consider the relationship between the MSS and other statutory documents such as the Council Plan and other documents required under the Local Government Act 1989.

Many submittors comment on the high costs and time involved in reviewing the MSS regularly. Some Local Government submissions note that it is often necessary to dedicate at least one staff member to the task of reviewing the MSS and this process takes at least 12 months.

KEY FINDINGS The Municipal Strategic Statement

The Committee considers:

It is time to comprehensively re examine the MSS, its role, its function and its place within the planning scheme; and The development of the Metropolitan Strategy and the eight Regional Growth Plans may impact on forthcoming and ongoing MSS reviews.

8.4 Local Planning Policy Many submissions express concern about the limited weight given to local policy by decision makers, particularly the extent to which VCAT took account of local policy. For instance, the Malvern East Group (Submission No. 508)

comments:

“As VCAT is not required to implement Local Policy, Members are not even obliged to give it more than token acknowledgement. All the effort that Councils and residents put into developing Local Policy is simply a waste of time and money if the applicant lodges an appeal...” Various council submittors share a similar view in relation to the weight VCAT gave to local policy. For example, the submission of Frankston City Council

comments:

“VCAT has down played the importance of local policy in its determinations, and / or given direction to interpretation. In heightening the importance of local policy, VCAT should be directed to give it due weight and consideration.” The City of Glen Eira elaborates in its submission (Submission No. 100) with the

following statement:

“The VCAT Act enables VCAT to simply consider policy. VCAT is not compelled to implement it. This situation undermines the importance of local policy in Council's decisions.

–  –  –

Furthermore, it devalues the Council and community investment in creating these policies, and the approval given by the Minister for Planning.” The Committee considers that there is a lack of understanding about the role of local policy and its purpose. The confusion may well be caused by the way in which the planning scheme is drafted.

Clause 20 of the VPP states:

“20.02 Operation of the Local Planning Policies Local Planning Policies are tools used to implement the objectives and strategies of the Municipal Strategic Statement. A Local Planning Policy (LPP) is a policy statement of intent or expectation. It states what the responsible authority will do in specified circumstances or the responsible authority’s expectation of what should happen. The LPP gives the responsible authority an opportunity to state its view of a planning issue and its intentions for an area. An LPP provides guidance to decision making on a day to day basis. It can help the community to understand how the responsible authority will consider a proposal. The consistent application of policy over time should achieve a desired outcome. When preparing amendments to this scheme and before making decisions about permit applications, planning and responsible authorities must take the LPPs into account.” In the report of the Advisory Committee on the Victoria Planning Provisions,

the following comments are made:

“Although the suites of zones and overlays in the VPP resemble those found within many current planning schemes, the fundamental difference is that they are intended simply to provide a framework within which decisions will be made according to an integrated set of policies contained either in the State Planning Policy Framework (SPPF) or the Local Planning Policy Framework (LPPF), which includes the Municipal Strategic Statement (MSS) and local planning policies. Much more than in the past, policy is expected to drive decision making. In this respect, the VPP are intended, in decision making terms, to be a means to an end, rather than an end in themselves....

The discretion which responsible authorities will exercise is much wider than hitherto, but the discretion entails an ability to say no, just as much as to say yes. Councils will have to be confident in the exercise of their discretion if they are to avoid claims of inconsistency in decision making or unacceptable outcomes. The only way they will achieve this is by developing, not only strong strategic plans, but local policies intended to guide day to day decision making in particular areas or

–  –  –

with respect to particular uses which are in accord with those strategic plans.” (Underlining is the Committee’s emphasis)

VCAT has commented on the role of policy. For example7:

“The role of local policies is to assist to guide the exercise of discretion.

A local policy cannot prohibit, or effectively prohibit, a permit application.” In the Final Report New Format Planning Schemes (April 1999), the then Chief

Panel Member, Mrs Helen Gibson made the following important observations:

“The panels believe that unless policies are carefully monitored, they have the potential to undermine the intent of the planning reform program by becoming de facto zone controls. The emphasis will shift from what is permitted in the VPP zone to what is permitted under the Local Policy. They will be used as a prescriptive measure rather than as a means to establish a performance base. There will be the temptation to rely on local policies as proscribing the extent of discretion, in the interest of ‘certainty’, rather than always measuring a proposal against objectives. Alternatively, there will be the temptation to cast objectives themselves as prescriptions.

On the other hand, unless local policies are ascribed a legitimate role in guiding the exercise of discretion over use or development, there is little point in having them. Establishing the appropriate balance would be of critical importance during the initial stages of operating the new format planning schemes.”

The Whitney Report8 noted that:

“6.2 Certainty Planning is not a precise science – the rapidly changing social and economic structures of society make planning systems based on precise and detailed regulatory controls too inflexible. The Victorian planning system is one in which decision making is underpinned by policy. It is a system that was introduced to maximise flexibility and, at the same time, facilitate good outcomes that would help to implement policy.

Experience with policy based planning schemes is continually developing. Some stakeholders are still coming to grips with the task of writing, understanding and giving appropriate weight to policy.” 7 Dinsbergs v South Gippsland SC (2011) VCAT 1452 (29 July 2011) 8 Reference Group on Decision Making Processes - September 2002 Report No. 1

–  –  –

The Committee also notes that in a subsequent review of local policy the

reference group on Making Local Policy Stronger, reported:

“The VPP intention was that where a planning objective cannot be implemented directly by a zone or overlay, a Local Planning Policy can be used. A Local Planning Policy is a statement of intent or expectation.



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