«December 2011 Victorian Planning System Ministerial Advisory Committee Initial Report. Geoff Underwood, Chair. Catherine Heggen, Member. David ...»
The potential for a council to not accept a permit application with insufficient information should only be contemplated where there are clear, standardised specifications universally available to all applicants about what should be included in a permit application.
KEY FINDING Request for Further Information The Committee concludes that increased efficiencies and reduced timelines for the processing of a permit application can be achieved by a suite of statutory and non statutory measures. These measures will be investigated in the next stage of the Committee’s work.
10.1.5 Amendments to Planning Permits Numerous submissions raised the issue of amendments to planning permits.
There are a number of ways that a planning permit can be amended. They are:
Section 71 (slip rule to correct mistakes);
Section 72 (minor amendments);
Section 87 (amendment or cancellation of a permit);
Section 87A (Amendment of permit issued by VCAT); and Secondary consent contained within a planning permit condition.
Overall, there is widespread concern about the inconsistency in the application of methods to amend a planning permit and how this impacts on the transparency of the planning system. As summarised by the City of
Stonnington (Submission No. 537):
“Consistency should be sought in the various mechanisms available to review a decision i.e. between secondary consent, Section 72 and Section 87. The test is different in each case.”
Section 72 of the Act states that:
“A person who is entitled to use or develop land in accordance with a permit may apply to the responsible authority for an amendment to the permit.”
Section 72 excludes a permit issued at the direction of the Tribunal from this option to amend a permit. This section specifies that a “reference to a permit includes any plans, drawings or other documents approved under a permit”.
The City of Melbourne outlines concerns that are shared by other submittors
“Section 72 can be used for an amendment that amounts to a complete transformation of a proposal but is not available for even the most minor amendment to any permit issued at the direction of VCAT, including amendments to plans endorsed under the permit, or permits issued on the basis of Consent Orders. This results in inequities and delays. For example, an application to increase a front fence height by 200mm, which was not a matter in dispute at the VCAT review, took 4 months.” When a permit has been issued at the direction of VCAT, the current system requires that secondary consents then be endorsed by VCAT who is the responsible authority. There was general widespread criticism of this process due to its cost and time burdening effect. Typical responses from councils
Maribyrnong City Council (Submission No. 72):
“A responsible authority should have the ability to amend a permit issued at the direction of VCAT… particularly for minor amendments, [the current process is] unnecessarily time consuming.”
Glen Eira City Council (Submission No. 118):
“…this is unnecessarily time consuming for all parties.[The proposed solution is to] amend the Planning and Environment Act to allow for VCAT directed permits to be amended by a Responsible Authority in all circumstances.”
Cardinia Shire Council (Submission No. 200):
“For minor changes to the permit or plans especially where there are no objectors, council should be able to amend a permit issued by VCAT.” Furthermore, such opinions extended into the private sector, with the UDIA (Submission No. 407) noting:
“A responsible authority should have the power to amend a condition issued at the direction of the Victorian Civil and Administrative Tribunal (VCAT).”
A number of submissions also address the use of the secondary consent
process usually expressed as permit condition as follows:
“The building and works authorised by this permit must not be amended in any way without written consent of the responsible authority.” Overall, there was support for the purpose of secondary consents in providing a “fast track minor amendments to permits that do not result in any material detriment” (Towong Shire Council, Submission No. 119).
The issues raised about the use of secondary consents allowed under a permit relate to the lack of clarity on the scope of change permitted, lack of consistency between councils on when the use of secondary consent processes are acceptable and the lack of timelines for the consideration of plans submitted for endorsement under the secondary consent permit condition.
Submissions relating to the scope of secondary consent amendments are
Maribyrnong City Council:
“The scope of amendments allowable under secondary consent also needs to be clarified, either through the Act or through a separate guideline.”
Kingston City Council (Submission No. 154):
“The existing 'secondary consent' provisions have increasingly developed a culture whereby…a 'right first time' attitude is increasingly less important…This has in some instances reduced community confidence in the Planning Application process.”
City of Casey (Submission No. 281):
“Secondary consent should only be available if the change is minor, does not increase floor area or number of dwellings for example and when it relates to a permit issued where there were no objectors.”
Master Builders Association Victoria (Submission No. 297):
“There are no clearly defined processes, criteria and or timeframes for secondary consents.” Issues raised in relation to timelines are expressed in further submissions.
City of Melbourne (Submission No. 383):
“There is support for the introduction of prescribed times to make a decision on applications to extend a permit (60 days) and for decisions on secondary consents (60 days).”
Urbis (Submission No. 216):
“Timeframes for ‘post approval’ processes (such as secondary consent …) are unclear, and in our experience often take longer to resolve than what might reasonably be anticipated – sometimes as long as the original permit application timeline.” The lack of consistency of when the secondary consent method is appropriate
is also raised as a concern. The Housing Industry of Australia notes:
“Each local council has its own approach when dealing with secondary consents for minor amendments to a design without having to formally apply to amend a planning permit. [An option is to] produce state wide consistent requirements for secondary consent. Guidance should provide greater clarity and consistency regarding fees, timeframes and information requirements.”
These concerns are also held by the Master Builders Association Victoria:
“Also councils vary widely in their interpretation of whether an applicant can apply under section 87 or section 72.”
The Modernising Report addressed the issues of secondary consent and notes:
“Process for secondary consents A permit condition may provide that some future or further changes be carried out to the satisfaction of the responsible authority or not carried out except with the further consent of the responsible authority. These consent requirements are often called ‘secondary consents’ and they provide a way of making minor changes to plans or other aspects of a permit. However, there is no defined process for considering a secondary consent request, or defined criteria for when this type of consent should be used.
Registration of secondary consents While an amendment to a permit must be notated on the permit and recorded in the planning register, there are no equivalent requirements for secondary consents. It is not necessarily evident on the face of a permit whether any secondary consents have been given, or which is the relevant current endorsed plan.”
The Modernising Report poses the question:
“Should the Act set the principles for when the use of a secondary consent permit condition is appropriate?” Outside the five mechanisms to amend a planning permit, an issue raised by
HIA adds another layer of uncertainty:
“There is ambiguity regarding whether it is necessary to amend a permit or apply for a new permit in some cases… For example, in most typical residential situations, there is a planning permit exemption for landscaping, pergolas, decks and verandahs where certain conditions are met. However, this exemption is negated if a planning permit has been issued for the site along with endorsed plans for the dwelling and landscaping. HIA members report lengthy delays in building projects to seek amendments to permits that would otherwise be exempt under Clause 62 of the Victorian Planning Provisions.” The Committee considers that the ability to expeditiously amend plans and permits is an important part of the existing planning system and a method to enable this process to occur is essential. The question is whether the current methods of doing this are clear.
The Committee is determined to find a better way.
KEY FINDING Amendments to Planning Permits The Committee considers provisions relating to secondary consent amendments to planning permits are unclear and should be reconsidered.
Other provisions of section 6 stipulate the content of schemes as well as how and where planning schemes apply.
Section 6 establishes all planning schemes as statutory documents which set out objectives, policies and provisions relating to the use, development, protection and conservation of land in the area to which they apply.
Section 8A(1) of the Act makes a municipal council the planning authority for any planning scheme in force in its municipal district. Acting as planning authority, councils usually prepare the documents for any amendment to a planning scheme. Part 3 of the Act sets out the process for making and amending planning schemes. That process includes public exhibition, the right to make a submission and an independent panel assessment process.
The DPCD website describes the planning scheme amendment process in this
“Before an amendment can be prepared it must be authorised by the Minister for Planning. The Minister may also authorise a planning authority to approve an amendment after certification by the Secretary of the Department of Planning and Community Development.
An amendment to the scheme involves consultation with all the parties who may have an interest in the amendment, or may be affected by it.
Usually, an amendment is placed on public exhibition for at least one month.
If there are submissions which cannot be resolved by the planning authority, the Minister for Planning will appoint an independent panel to consider submissions if the proposed amendment is to proceed.
When it receives the report from the panel, the planning authority must either adopt the amendment, abandon the amendment or adopt the amendment with changes.
An amendment becomes part of the planning scheme when it is approved by the Minister and notice is given in the Victoria Government Gazette. In instances where both a permit and an amendment are required, the Act makes provision for a combined permit and amendment process.”
The website summarises the steps in the planning scheme amendments
Step 1: Requesting an amendment;
Step 2: Authorisation;
Step 3: Preparation;
Step 4: Exhibition;
Step 5: Submissions, panels & Advisory Committees;
Step 6: Adoption; and Step 7: Approval.
The process is shown diagrammatically in Figure 6.
The planning scheme amendment process was a major focus of submissions.
More than 100 submissions commented on aspects of the process. These range from the extent of reports and information to be provided with a request for an amendment, to the various steps in the process, time taken for approval by the Minister for Planning and the review process applied by DPCD.
Each step of the process was criticised, as much from councils as industry groups and individuals.
The Committee is not the first to examine the planning scheme amendment process. Recent reviews include the 2010 Planning Act Review Working Group chaired by Mr Ian Robins and Modernising the Planning Act project in 2009.
Submissions indicate that there is frustration with the planning scheme
amendment process. The Modernising Report comments at Page 29 that:
“The amendment process is generally considered to be a robust one, however, the efficiency of the process could be improved.” There is no shortage of suggestions from submittors about methods to improve the efficiency of the process. In this report, the Committee identifies the issues raised in the submissions and the ensuing need for more detailed consideration of some of these issues.
The discussion below begins with extracts from a submission by Lascorp Development Group Pty Ltd (Lascorp). In its comprehensive submission, Lascorp covers many aspects of the planning scheme amendment process.
Lascorp identifies itself as a retail developer who regularly seeks land rezonings to facilitate supermarket or retail development.
The submission expresses the company’s frustration with the system and
offers some solutions:
“The Planning Scheme Amendment process perhaps best demonstrates how the current planning process is consistently frustrating opportunities for major investment and development that meets proven need to be delivered.