«December 2011 Victorian Planning System Ministerial Advisory Committee Initial Report. Geoff Underwood, Chair. Catherine Heggen, Member. David ...»
10. The Processes within the Planning System There are two key processes within the planning system that give effect to planning policy and allow the delivery and achievement of the objectives of planning in Victoria as set down in Part 4(i) of the Act. These two key
processes are the:
planning permit process; and planning scheme amendment process.
An overview of the submissions received on each process and the prioritisation of the issues raised are discussed in the following parts of this report.
10.1 The Planning Permit Process The underlying concerns at the core of many of the submissions addressing the permit application process relate to the increased administrative burden borne by councils which have competing demands on their financial resources and the increased costs to the private sector as a consequence of delay and uncertainty.
Community groups and some individuals are also concerned about what they perceived as the uncertainty designed into planning controls and planning policy. These submittors want to maintain the opportunity to be involved in the planning permit process and retain existing third party rights.
The Modernising Report examined the role and significance of the current
planning system’s permit process at Part 6 of that report and noted:
“The planning permit process is a significant part of the overall planning system, and is generally the point at which the wider community participates in the planning process as either an applicant or as objector. The impact of the process is reflected in the number of permit applications, around 50,000 each year in Victoria, with seven per cent of all applications being reviewed by VCAT. This represents a significant workload for councils, referral authorities, VCAT and other parties involved in the process. The current permit process could be improved to reduce the regulatory burden on government, business and the community.” Planning schemes regulate the use and development of land by requiring that certain types of use or development can only be carried out if a planning permit is granted.
A zone or overlay principally allows for three process outcomes, namely:
Allow a particular use or development ‘as of right’, often subject to certain conditions being met;
Require the grant of a permit with or without conditions; or Prohibit a particular use or development from occurring.
Section 47 of the Act sets down the requirements of a planning permit
application, including that the application must be:
Made to the responsible authority in accordance with the regulations;
Accompanied by the prescribed fee; and Accompanied by the information required by the planning scheme.
Once a permit application is lodged with a responsible authority, next steps can include a request by the responsible authority for further information (Section 54), referral of the application to a referral authority specified in the planning scheme (Section 55) and the requirement of the applicant to give notice of the application, unless the responsible authority is satisfied that the grant of a permit would not cause material detriment to any person (Section 52).
Following the consideration of a range of matters including the relevant planning scheme provisions, the objectives of planning in Victoria, any referral advice and any objections to the application; the responsible authority may decide to do one of three things namely; to grant a permit where there are no objections (Section 63), issue a Notice of Decision where there are objections and the responsible authority proposes to approve the application (Section 64), or issue a notice of refusal (Section 65).
The Act provides for the potential to amend planning permits in certain circumstances (Sections 72, 87 and 87A).
Division 2 of the Act then addresses the avenues of appeal to VCAT that different participants in the process may pursue in seeking to review a decision, the failure to make a decision within the prescribed 60 day timeline or a particular requirement of the responsible authority.
Figure 4 shows the key elements of the current planning permit process.
FIGURE 4 The Planning Permit Process Source: Page 20, Modernising Report The issues raised in the submissions surrounding the planning permit process
fall under the following key themes:
The appropriateness of a single stream process;
Notice requirements and material detriment;
The adequacy of the information accompanying a permit application, and requests for further information; and Amendments to planning permits.
10.1.1 The Appropriateness of a Single Stream Process A number of councils, industry groups, professional practitioners and individuals consider that the current ‘one size fits all’ permit process needed to be changed to allow more than one stream. They believe this arrangement could more capably reflect the scale and complexity of a use and/or development proposal and its likely impact with the relevant process, time and expertise required to assess the application.
As part of its investigations, the Committee received submissions and presentations on the South Australian and New Zealand planning systems.
While there are a number of differences between those systems, what they do have in common is a development approvals process that streams different classes of statutory consents and then aligns these different classes with a defined scope of public notification. The statutory timeframe within which a responsible authority is required to make a decision is also tailored to reflect the different paths a particular application will take.
The submission of the Eastern Region Group of Councils (Submission No. 491) reflects the suggestions of a number of submittors in this regard, and notes
“38. The last released report on planning permit activity in Victoria showed that at a state level there had been an increase of 3% in planning permit applications (new applications and amendments) and that 65% of all applications were decided within statutory timeframes.
39. This shows the nature of the workload being imposed on councils and the extent to which the 60 day allocation fails to be sufficient for a large number of applications10. Many councils have introduced their own informal mechanisms to deliver quick outcomes for some planning applications, however these are not supported by the legislation and are really a matter for each individual council to provide or not provide.
40. It seems clear that there are essentially 3 categories of planning
applications considered by councils:
- straightforward applications not requiring notification, unlikely to be controversial and easily able to be dealt with inside of 60 days;
10 Noting that the average gross days to decision was 117 days and the median gross days to decision was 73 days – Planning Permit Activity Report 2009-10.
Similarly, the City of Brimbank (Submission No. 103) comments:
“Changes to the planning system are required to allow planning and responsible authorities to focus resources and effort on matters of importance. The planning system must be able to differentiate more clearly between procedural matters and those that are strategically important and have potential for significant impact. Code assessment and deemed to comply arrangements in the planning system could be facilitated allowing resources and effort to be allocated to applications with complex strategic issues.”
The Modernising Report also notes the following:
“‘6.1 One size fits all?
The Act currently provides for only one permit process to be applied to all applications, regardless of the scale, complexity or significance of the proposal. While the Act provides that different steps in the permit process such as notification and referral may or may not apply to an application, most applications follow the same process.
Process requirements for applications that involve little or no consideration of policy, or only require testing against mainly technical criteria, can be made unnecessarily complex.
A new ‘short’ permit process could allow identified types of applications to undergo a streamlined permit process. To implement
any new ‘short’ process it will be necessary to:
define the process itself – this is a matter for legislation; and define the classes of matters which may be determined under the new process in planning schemes, in terms of the ‘permit triggers’ in the planning scheme which establish that a particular project requires a permit.” Initial Report - December 2011 131 Victorian Planning System Ministerial Advisory Committee In contrast, the Macedon Ranges Residents Association Inc (Submission No.
413) states in its submission that:
“Our Association does not support the Act providing for a short permit application process. This would have a variety of implications across the State, and we have no confidence these have been sufficiently considered, especially implications for rural areas. Questions of propriety and accountability also arise. At the moment there is one rule for all, so everyone knows exactly what to expect.” The Committee notes that the planning scheme already provides what is in effect a shorter permit process because some permit triggers are exempt from notice and third party rights, such as certain buildings and works in the Heritage Overlay, Special Building Overlay, Wildfire Management Overlay and Land Subject to Inundation Overlay. Certain categories of signage and buildings and works in business and industrial zones also exempt notice and third party review rights.
There are other types of use and development controls, such as a Development Plan Overlay, Activity Centre Zone or Urban Growth Zone, where the impact of the development outcome at a strategic level has already been examined through a public review process. These existing zones and overlay controls already provide for subsequent permit applications to be exempt from notice and third party review rights.
In this context, the Committee believes there are procedural and public policy benefits to codify existing practice and introduce via legislative change, different types of permit application processes that more appropriately align with the scale and potential amenity impact of these proposals.
The principle of ‘streaming’ permit applications to better fit the process with the scale and complexity of the proposal has been considered in previous reviews of parts of the planning system. Better Decisions Faster, DAF, Cutting Red Tape in Planning, and Modernising Reports all canvassed the principle of different processing paths and tailored public notice requirements for different classes of permit applications. Most submissions to the Committee on this matter also support this approach.
The Committee considers that there continues to be strong supporting argument for streaming planning permit processes in order to address issues raised in submissions from councils, the community and private sector on the financial and human costs associated with uncertainty caused by the current one size fits all permit process.
The two planning permit streams recommended by previous reviews are ‘Code Assess’ and ‘Merit Assess’. While both streams have been discussed
conceptually in the above reviews and reports, the scope of these were not formulated or tested. The lack of detail around these processes has generated a degree of apprehension in the wider community. For example, Banyule
Planning Network (Submission No. 530) comments:
“We are opposed to Code Assess as it takes away the opportunity to object to developments that are in appropriate. To agree to this system we, the residents, would have to have complete control over establishing the guidelines and these guidelines would have to be totally clear and not be in anyway subjective...” The Committee notes these concerns and agrees that Code Assess criteria should be developed through community consultation on quantitative measures which do not already exist in planning schemes.
A number of council submissions considered that, rather than introduce a Code Assess stream (or as well as a Code Assess stream), the red tape and delays from the increasing number of permit applications in the system could be reduced by removing the number of permit triggers in planning schemes.
The Committee believes that an audit of planning schemes should be undertaken to identify where permit triggers could be removed. In Part 9.5.2 of this report, the Committee also comments on how overlays for example might be modified to reduce unintended permit triggers.
Many submissions from councils suggest formalising different processing paths for different types of permit applications. Accordingly, the Committee has considered how such an approach might operate to advance this proposal. In doing so, other process matters also need to be considered, such as when and to what extent it is appropriate to give notice of applications, and how to improve the referral process of permit applications. These matters are discussed in the following Parts 10.1.2 and 10.1.3.
Creating a two stream approach; a Code Assess stream and a Merit Assess stream, may be one way to organise classes of use and/or buildings and works, or subdivision. This approach is illustrated in Figure 5.
The different assessment streams illustrated in Figure 5 are:
Code Assess Class 1 Quantitative Assessment: A proposal in this class must meet all of the quantitative criteria.
Merit Assess No Notice Classes 2 and 3: There are two classes of applications within this merit assessment stream. These two classes would be exempt from notice and third party review rights. In many cases, this exemption already exists in the planning scheme.