«December 2011 Victorian Planning System Ministerial Advisory Committee Initial Report. Geoff Underwood, Chair. Catherine Heggen, Member. David ...»
- Class 2 Simple Assessment: This class of application could encompass proposals for minor buildings and works such as shopfront alteration, vegetation removal, the construction of a fence in a Heritage Overlay and also permit triggers that arise under a technical single purpose overlay such as the Special Building Overlay or the Wildfire Management Overlay.
- Class 3 Impact Considered Assessment: This class of application could encompass any use and/or development proposal that is already exempt from notice and review provisions of the planning scheme (eg.
Development Plan Overlay, Urban Growth Zone or an Activity Centre Zone).
Merit Assess Notice Classes 4 and 5: There are two classes of applications in this Merit Assess stream. These two classes of applications would be subject to notice and third party review rights.
- Class 4 Limited Assessment: This class of application may include non complying Code Assess applications or proposals where any potential impact relates to localised amenity consequences only.
- Class 5 General Assessment: This class of application would encompass proposals with potential for wider geographic impact.
The Committee considers that the Code Assess stream should relate to buildings and/or works applications and not land use applications. Code Assess applications could cater for proposals of variable scale, however in all instances the proposal would need to comply with clear quantitative criteria. A proposal that complies with these provisions would be exempt from notice requirements. A reduced statutory decision time frame would also follow.
Where a judgement is required to be made by a decision maker on a qualitative objective or a particular design outcome, then the Code Assess approach is unsuitable and the Merit Assess stream is the appropriate processing path.
The Committee emphasises that the streamed permit process outlined in this report should be progressed via careful testing with councils and the community. The Committee suggests developing and implementing a pilot program across various municipalities.
This approach is also one recently adopted by the New South Wales’ Department of Planning and Infrastructure and Local Government Association, who have jointly launched a housing code for certain classes of residential development entitled NSW Housing Code – A Guide to Complying Development. In this Code, when a building meets all of the pre determined numerical standards, a 10 day approval process is envisaged in effect, a Code Assess approach. The NSW Housing Code is currently being trialled in selected municipalities.
KEY FINDINGS – Assessment Streams for Permit Applications
The Committee considers that:
A system of planning permit application streams should be developed for different land use and or development categories. These streams should align with revised notice provisions, referral authority procedures and adjusted timelines for decision making.
A Code Assess process be developed and piloted in selected municipalities for a variety of buildings and/or works and/or nominated subdivision proposals.
An audit of existing permit triggers in the planning scheme be undertaken to identify where permit triggers could be reduced.
10.1.2 Notice Requirements and Material Detriment
The requirements for giving notice of an application are set out in Section 52 of the Act. A planning scheme can set out classes of application that are exempt from all or any of the requirements of Section 52(1), except covenant removal.
Examples of this technique include the Design and Development Overlay and the Activity Centre Zone where certain buildings and works are exempt from notice and third party review rights. There is a different approach between planning authorities as to how they utilise these provisions.
Many submissions seek to protect the existing potential to participate in the planning process achieved via the existing notification requirements. The current provisions of the Act require that notice of an application must be given unless the responsible authority is satisfied that the grant of a permit would not cause material detriment to any person.
The current provisions of the Act which potentially expose councils to liability (such as section 94) for decisions relating to notice, or failing to give notice, function to discourage councils from limiting the extent of notice of application.
Third party involvement in the planning process is an important part of Victoria’s planning system.
In a paper titled Third Party Participation in the Planning Permit Process11 prepared in 2005 by the then President of VCAT, former Justice, Stuart Morris
QC, described three reasons in support of third party rights, namely:
The opportunity for citizens to have their say on a particular proposal tends to improve the quality of governance.
Third party involvement often leads to better planning decisions by way of more detailed evaluation through the appeal process, and Third party rights discourage corrupt behaviour between developers and Local Government.
The author goes on to note however that third party rights should be responsibly exercised. The Committee agrees with this observation.
Rachel Otts (Submission No. 267) writes in support of third party rights as
“I’ll begin by expressing a positive, and my relief at the ability to have the local Government planning decisions and decisions on the Planning and Environment Act independently assessed at VCAT. I feel that having third party rights are important to our system and should be maintained and supported. The third party rights are of great value to the integrity of our planning system to uphold our planning laws.
Although I wish for consistency of the planning scheme and Planning and Environment Act at a local level, the third party rights provide that consistency to the planning system and is beneficial when the local system fails.” Other submissions consider that the notification procedures that underpinned third party involvement should not be unlimited but be designed to better reflect the scale and likely impact and consequence of the use or development
permission being sought. The City of Melbourne (Submission No. 383) notes:
“The existing system of virtually unfettered third party notice and review rights is considered to be too generous. Full third party rights to notice and appeal are particular strong medicine. Far more of the consultation in planning should be upfront through strategic planning and structure planning processes.
11 A paper presented at a conference on “Environmental Sustainability the Community and Legal Advocacy” conducted by Victoria University, 2005.
At present we are seeing a one at a time challenge to development, no matter how silly or no matter the cost to developers or Councils.
Approximately two thirds of VCAT case load relates to matters of residential amenity. Huge energy and resources are being put into obtaining permits for little things...
...It is suggested that the review could examine a system similar to that in the UK where different third party rights are applicable in different
circumstances, as follows:
No notice or appeal;
Notice but no appeal; and Notice and appeal.
It is suggested in areas where proper strategic and structure planning processes have been undertaken it might be adequate to notify surrounding property owners so that they may comment on matters of detail, but for there to be no right of appeal.
Full third party notice and appeal should be applied like vegemite – sparingly, and only in special locations.”
The Eastern Region Group of Councils (Submission No. 491) notes:
“Third party involvement in the planning system
29. The Group considers that one of the valuable aspects of the current Victorian planning system is the extent to which it involves the local community in many aspects of planning decision making including for planning scheme amendments and planning permit applications.
30. The Group does not consider that this ought to be fundamentally changed, but rather that there should be consideration given to the tests provided for in the Act about the nature of the notice that has been given. In this regard, it should be noted that section 52 of the Act has never been comprehensively reviewed and continues to provide a convoluted test (relating to material detriment) to determine whether notice is required to be given in a bid to provide for a simpler, more effective notice provision that ensures those who are likely to be affected by a particular proposal receive notice, without extending such notice more widely than is worthwhile and useful.
31. In this regard, the Group has observed that both in objections before Council and at VCAT, community members participate in the planning process who do not live proximate to the subject site, are unlikely to be directly affected by the proposal and who make objections to council and/or submissions to VCAT which are
The Committee considers that third party involvement in the planning process is an important component of Victoria’s planning system. Clearly third party involvement adds to the processing time for applications. This outcome should not of itself be considered a symptom of malaise in the planning system.
However third party rights are not unlimited, rather they should be exercised responsibly having regard to the potential impact arising from a proposal. The Committee considers that third party involvement in the planning system should be proportional to the scale and nature of the permission being sought;
and relevant to the exercise of discretion prescribed in the planning scheme.
The Committee considers that the potential to stream permit applications into different classes namely Code Assess or Merit Assess provides a basis to align notification requirements with each path.
At one end of the spectrum the Class 1 Code Assess stream would be exempted from notice and third party review rights because the assessment criteria are quantitative and have been developed with community input and review. The Class 4 Limited Assessment stream could be aligned with a reduced scope of notice to reflect the more limited nature of potential material detriment. At the other end of the spectrum, the Class 5 General Assessment stream could have notice requirements determined at the discretion of the Responsible Authority. Existing third party review rights would be retained in the Class 4 Limited Assessment and Class 5 General Assessment streams.
The current provisions of the Act which potentially expose councils to liability (such as section 94) for decisions relating to notice, or failing to give notice, should be reviewed as a consequence of the changes.
The effect of these changes is to remove the need for the responsible authority to make a judgement about the potential for material detriment in most types of applications.
KEY FINDINGS Notice Requirements and Material Detriment
The Committee considers that:
Third party involvement in the planning process is an important component of Victoria’s planning system.
Third party rights are not unlimited and should be:
- proportional to the scale and nature of the permission being sought; and
- relevant to the exercise of discretion prescribed in the planning scheme.
The potential to stream permit applications into different classes, namely Code Assess and Merit Assess processing paths, provides a basis to align notification requirements with each processing path.
Notice requirements for different classes of land use and/or development
should be prescribed by:
- enabling the planning scheme to set out notice requirements for different classes of applications; and
- legislative change to section 52 of the Act and to the Regulations.
The current provisions of the Act which potentially expose councils to liability (such as section 94) for decisions relating to notice, or failing to give notice, should be reviewed as a consequence of any change to Section 52 of the Act.
10.1.3 Referral Processes Referral processes are an important part of the planning system.
Many submissions to this review including those from referral authorities suggest the need for change in the current referral practices.
Section 55 of the Act requires that a permit application be referred to those authorities specified in Clause 66 of the scheme as a referral authority.
Planning schemes provide that an application does not need to be referred if in the opinion of the responsible authority the proposal satisfies requirements or conditions previously agreed in writing with the referral authority. In practice however, these agreements or protocols have not been well utilised.
After receiving the referral authority’s comments, the responsible authority must refuse the application if a referral authority objects to the grant of a permit or include any condition of the permit requested by the referral authority.
After receiving an application, a referral authority has 28 days to provide comment or direction to the responsible authority.
A number of submittors criticised the performance of referral authorities in responding to referrals within the statutory timeframe, causing delays to the processing of applications and frustrating applicants. Submittors also observed that the failure of some referral authorities to attend and substantiate their required permit conditions at a VCAT hearing undermined the imposition and validity of conditions in the first place, often leaving councils to defend the position of the referral authority.
The submission of Cardinia Shire Council (Submission No. 200) is typical of the concerns expressed about the performance of referral authorities and the dilemma imposed by conflicting requirements by more than one referral
authority to an application. This submission notes: