«December 2011 Victorian Planning System Ministerial Advisory Committee Initial Report. Geoff Underwood, Chair. Catherine Heggen, Member. David ...»
Lascorp seeks a guaranteed and statutorily based recourse to a higher authority in instances where a local authority is procrastinating or unreasonably refuses to put forward an amendment, and a more timely process for proposals that are consistent with state government and council policy.
Lascorp concurs with the range of industry concerns surrounding the Planning Scheme Amendment Process, as identified in the 2009 Modernising Victoria’s Planning Act Response Paper No. 2. In particular, the lack of statutory timeframes associated with the amendment process, Councils’ power of veto, and the lack of an appeal process to contest this should it occur, create a lot of uncertainty for proponents. Whilst the ongoing role of DPCD in authorising amendments is supported, the absence of statutory timeframes extends also to this aspect of the amendment process. Finally, the ‘one size fits all’ approach to Planning Scheme Amendments means all amendment proposals, from administrative ‘corrections’ to Planning Schemes to proposals with a broad, strategic impact, are treated in the same way...
There are areas where some reform could be considered, to streamline and add certainty to the amendment process. To this end, Lascorp supports the implementation of the Planning and Environment Act Review recommendations proposing revisions to the existing Council
led amendment process, which propose:
Providing the Minister for Planning with powers to authorise any person to prepare an amendment;
The pre setting of a date for the Directions Hearing at the time of exhibition;
Bringing forward the certification step to the beginning of the amendment process, to ensure that all amendments are in an appropriate form at the outset;
Giving the Minister sole power to abandon amendments, as well as remaining responsible for approving the Amendment, with the Council role being to provide a recommendation to the Minister on the amendment proposed;
Amending the Act to allow an authorised person to apply to VCAT for a review of a defect in procedure; and
A range of performance measures to be applied to the standard amendment process, to improve timeliness.
The initiative to introduce a streamlined Planning Scheme Amendment procedure for the processing of minor or technical amendments is also supported.”
These solutions are supported entirely or in part by other submittors including:
Industry groups including the Property Council of Australia (Submission No.
311), the Master Builders Association (Submission No. 297), the HIA (Submission No. 196), the Urban Development Institute of Australia (Submission No. 407);
Individual submittors including McGauran Giannini Soon Architects Pty Ltd (Submission No. 444), F. R. Perry & Associates Pty Ltd (Submission No. 456), Fiona Ogilvy O'Donnell (Submission No. 187); and Councils including Wellington Shire Council (Submission No. 239), Hobsons Bay City Council (Submission No. 229), The City of Greater Dandenong (Submission 351) and Cardinia Shire Council (Submission No. 200).
The Wellington Shire Council (Submission No. 239) states:
“Critical to any future planning reform is the need to simplify the Planning Scheme amendment process and provide greater discretion for Council to amend/update its Planning Scheme. Recent initiatives such as the certification of Planning Scheme amendments and the need to obtain authorisation of a Planning Scheme amendment have provided little benefit. The consideration and referral of submissions to an Independent Planning Panel (e.g. where only one submission is received to a previously tested issue) also requires review. Alternative processes, such as the establishment of Practice Day type hearings should be used to quickly deliberate on the validity/response to submissions. Further, when Independent Planning Panels are genuinely warranted to test the merits, the scope of Panel deliberation needs to be more clearly defined to ensure that Independent Planning Panel recommendations are relevant and achievable, Councils should also have greater discretion to promptly amend its Planning Scheme where it is implementing an adopted strategic plan/policy which has already been through a robust public process.”
The Hobsons Bay City Council (Submission No.229) states:
“Generally, there is a lack of ownership and transparency of the planning scheme amendment process by the DPCD. There is a need to introduce and/or reinforce timelines associated with the consideration of planning scheme amendments in the Act particularly when planning scheme amendments are with the Minister for Planning for Initial Report - December 2011 156 Victorian Planning System Ministerial Advisory Committee consideration (e.g. for authorisation and/or approval). If timelines are not met by DPCD, an avenue of appeal should be open to the Council.
Often it is the Minister for Planning or DPCD that are calling in amendments because it is believed the Council has taken too long however there is no avenue for the Council to do this when authorisation or approval of an amendment takes months to be finally approved.”
The Greater Dandenong City Council (Submission No.351) states:
“Council generally agrees in principle with the proposal to streamline the planning scheme amendment process by introducing a two track system enabling technical amendments to be expedited without needing to go through most of the time consuming steps in the amendment process such as public exhibition, the consideration of submissions, the panel hearing process, etc that amendments introducing policy should still be required to follow.”
The Cardinia Shire Council (Submission No.200) suggests:
“A statutory time frame of 3 6 months could be imposed on the Planning Authority to determine whether or not to prepare an amendment. If the Planning Authority does not make a decision within the prescribed time the proponent should be able to go to the Minister for Planning, as is currently the case.” The Cardinia Shire Council also suggests creating three classes of amendments and proposes different tailored approaches to procedures. The proposition is
to create three classes of amendments:
1. Procedural – to apply to the correction of anomalies, removal of redundant provisions, or minor policy neutral amendments;
2. Standard – to apply to amendments which have no significant policy implications; and
3. Significant – to apply to significant policy changes, amendments with significant policy implications or major development proposals.
Among many council submissions were those opposed to any proposal allowing the authorisation of private individuals to prepare a planning scheme amendment. This topic was among the issues considered by the Robins Working Group. The Committee does not advocate such a change.
The submission from the Mornington Peninsula Shire Council (Submission
No.517) is typical of those who oppose the idea:
“Private authorisation, particularly if combined with the removal of the power of Council’s to abandon amendments, would essentially place
local government on the sidelines in the key process for plan making. It would potentially result in centralisation of decision making, and the associated risk of a ‘one size fits all’ approach.
Such provisions would enable private interests to drive the planning agenda, with local government placed in a reactive position, leaving fewer resources to address Council priorities.” The Mornington Peninsula Shire Council also opposes the idea that there should be a right of review if a planning authority refuses to prepare an
“The argument that there should be an automatic appeal mechanism against Council refusal of amendments undermines the legitimate claim of local government to be a planning authority able to make (final) decisions and be accountable within its own jurisdiction. The change represents an unjustified reduction in the role of Local Government.”
Macedon Ranges Residents’ Association Inc. (Submission No. 413) states:
“In the Association’s view the current amendment process and the Panels’ system works well, and it would work even better if the Department of Planning and Community Development could be relied upon to provide consistently high standards of objective planning expertise and quality control.
There should be no weakening or ‘improving’ of amendment processes.
Scheme amendments change legislation (subservient legislation) and there must be full disclosure and justification for this.
The Association supports Councils retaining the authority to refuse an amendment request, and retaining existing timeframes for amendments.” Knox City Council (Submission No. 423) is succinct in its statement about
retaining its powers to determine amendments:
“…the current processes to amend a planning scheme are too lengthy and costly”, but argued that “to maintain the integrity of the role of Planning Authority, Council must retain power to commence, modify and abandon Planning Scheme Amendments.”
A different view is put by KLM Spatial (Submission No. 259):
“It is our view that the amendments are best dealt with by The
Minister and not councils for several reasons:
Amendments need the permission of the minister to proceed in the first place
Decisions on zoning should be made by the Minister to reflect government policy e.g. Melbourne 2030 and Melbourne @ 5 million.
Local councils are too heavily influenced by parochial issues rather than implementing planning policy There are no review rights so that council decisions are beyond scrutiny and contest.
Objectors can thwart a worthy proposal which may benefit the environment and many Victorians.” The Committee notes that the Draft Exposure Bill following the Modernising
Report proposed changes to the amendment process because:
“The current amendment process can take too long (particularly for technical amendments), and is uncertain, the quality of amendment documentation is variable, and some steps in the amendment process can be improved.”
The Exposure Draft proposed:
“Separate ‘streamlined’ and ‘standard’ planning scheme amendment processes are provided for the assessment of amendments. These processes are designed to improve efficiency by enabling an amendment to be streamed into a process that better reflects the nature of the change proposed by the amendment.
The Minister for Planning will be able to authorise a person to prepare an amendment and carry out certain procedural steps in the standard amendment process.
The Secretary of the Department will certify the quality of amendments before exhibition.
The date for a directions hearing will be set at the time of exhibition.
An amendment can only be approved or refused by the Minister on recommendation from the planning authority.” These submissions represent the divergent views presented by scores of submittors. Irrespective of the lack of unanimity, taken together they provide considerable argument to rethink the planning scheme amendment process.
Below are extracts from particular submissions about the steps in the amendment process, which make a case for review.
10.2.1 Step 1: Requesting an amendment “Who can prepare or amend a planning scheme?
An amendment may be prepared by any planning authority as specified by the Act. A planning authority is any Minister or agency that has been authorised by the Minister for Planning to prepare amendments. In most cases, the initiating planning authority would be a local council, but it may be another Minister. Sections 8, 8A, 9, 10 and 11 of the Act set out who is authorised as a planning authority to prepare and approve an amendment.
Anyone can ask a planning authority to prepare an amendment. If you do, you must be able to demonstrate to the planning authority (usually the council) adequate justification as to why an amendment should be prepared. Council will have to be certain that the amendment has planning merit and is consistent with the future strategic directions for the municipality. The Department’s Planning Practice Note – Strategic Assessment Guidelines for Planning Scheme Amendments sets out the matters that council should consider before amending its planning scheme.
There is wide scope for scheme amendments, which may consist of a small change to one provision, or major changes or a substitution.
Steps for preparing an amendment are set out in detail in the Act.
Changes to the planning scheme may be made by both the Minister for Planning and the local council.” Source: DPCD website The Modernising Report dealt with requesting and preparing an amendment.
The report states:
“The Act does not formally define the steps to prepare an amendment, nor how a planning authority should consider a request for an amendment before putting it on public exhibition.
While it is good practice for a proponent to discuss their proposal with the planning authority so that any known issues can be addressed before a request for an amendment is made, there is no requirement to do so.
The quality and amount of information that accompanies an amendment request can vary significantly.
Amendment proposals which have not been discussed with the planning authority are more likely to attract requests for further information before the merits of the proposal can be reasonably assessed. Inadequately prepared proposals can take up valuable planning authority resources and add time to the amendment process.
Initial Report - December 2011 160 Victorian Planning System Ministerial Advisory Committee
Options for improving this step of the process include: