«December 2011 Victorian Planning System Ministerial Advisory Committee Initial Report. Geoff Underwood, Chair. Catherine Heggen, Member. David ...»
providing more guidance on the information that should be included in an amendment request to improve the quality of proposals introducing an amendment request form for use by private proponents which requires a comprehensive description and preliminary assessment of the proposal.” There are times when a planning authority decides to refuse a request for an amendment, or chooses to make no decision because there are unresolvable differences between it and the proponent. At present, there is no way for a proponent to seek a review of a refusal, or to obtain an independent assessment on how these differences should be decided. A formal mechanism for this could be introduced, however it must be recognised that the process for ‘changing the rules’ is a governance process which is different from a review of ‘whether the rules have been complied with’, as occurs at VCAT.
The Committee is aware that the Robins Working Group received submissions and considered the proposal for an independent body to review disputes between the proponent and the council about a request for an amendment or the processing of an amendment. No recommendation of the Working Group has been made public.
Numerous submissions argue for this right of review if a planning authority refuses or fails to act on a request for an amendment. The submissions express mixed preferences for the review to be considered at VCAT, Planning Panels Victoria or a Standing Advisory Committee.
The Committee considers that the entire planning scheme amendment process requires reform. The Committee is confident that efficiencies in the process can be found and will consider whether there should be a right of review.
10.2.2 Step 2: Authorisation Page 33 of the Modernising Report considered the authorisation process. It
“There is concern that the original purpose of the authorisation step – to provide an initial assessment of the strategic merits of a proposed amendment – has become a detailed assessment of the amendment.
Clearer guidance about the purpose of this step, as well as the provision for simple amendments (amendments not involving policy issues, or amendments to correct mistakes) to be exempted from this step, may help to improve the overall efficiency of the process.” Initial Report - December 2011 161 Victorian Planning System Ministerial Advisory Committee
The Mornington Peninsula Shire Council submission states:
“There is a need to clarify the purpose of Ministerial authorisation prior to the exhibition of amendments. If it is simply an administrative ‘rubber stamp’ then there is little value in retaining authorisation.
However it is considered that there would be real value in authorisation if it is used to confirm consistency with State policy and to assess indicate that the proposed amendment is not opposed in principle or at least to flag issues of concern to DPCD, possibly for consideration by any future panel.”
The Hume City Council (Submission No. 401) took a similar view. It states:
“The amendment process could be further streamlined by removing the Minister’s power to authorise Council to approve an amendment.
In practice this provision has failed to achieve its intended efficiency gains, and has instead resulted in further reporting requirements.”
Other submissions relay concerns at the amount of time taken for authorisation.
The Committee recommends that the procedures for the consideration of a request for authorisation should be reviewed with a view to narrowing the matters addressed and the time for responding with approval or otherwise.
10.2.3 Step 3: Preparation “This stage covers the preliminary investigation, strategic assessment, consultation with relevant parties including DPCD’s regional office and the preparation of the amendment documentation.” Source DPCD website Council and proponent submittors raise concern over the level of strategic justification often required for an amendment. Smaller regional councils with low budgets often cannot fund the required strategic analysis to undertake small rezoning amendments, let alone major municipal strategic planning projects.
Studies required to establish a strategic basis for an amendment include documents such as traffic management studies, cultural and heritage studies, flora and fauna studies, engineering studies and social and economic impact studies. The costs for a council or proponent can be high (costs are discussed in greater detail in Part 9.1.3 of this report).
From a proponent’s perspective, this work is undertaken at his or her own risk, knowing that at any point in time, the council may request additional studies to be undertaken prior to the draft amendment being placed on exhibition.
The proponent is in fact involved in a process to which there are no defined criteria as to the completeness of their amendment request.
Also relevant is the involvement of other agencies who act as referral authorities. In this stage of the process, planning authorities advise a range of bodies about the preparation of an amendment. This allows for the assessment of any impact a proposal may have on say the demand for services or for schools or transport considerations. Catchment Management Authorities are particularly concerned to be aware of proposals that relate to change in land status within their areas of responsibility.
Goulburn Murray Water (Submission No. 367) comments not only on the desirability of being informed about amendments but also on other aspects of
mooted changes to process. The authority states:
“The proposal to streamline the planning scheme amendment process is supported however fails to recognise that significant delays in the process rest with the Department rather than the Responsible Authority.
The idea that response times apply to referral authorities should be equally applied to the Department and the lack of a response in a required timeframe (28 days) should be deemed to be authorised.
The current methodology of involving referral authorities in the formative stage of the amendment (pre application) is sound and often exposes serious shortcomings in the proposed amendment.”
10.2.4 Step 4: Exhibition
The lack of reference to the exhibition phase of the planning scheme amendment process suggests that this is not a contentious step. There are however submissions that argue there ought to be different exhibition periods for amendments that have different effects. The Cardinia Shire Council submission is noteworthy in this respect.12 The Committee notes there has been a significant use of section 20(4) of the Act for amendments that would have normally been dealt with under the standard process. The Committee thinks that this is symptomatic of a frustration with the current processes and timelines involved in exhibition and panel processes. The Committee considers that the increased reliance of section 20(4) is undesirable.
12 See Page 6 (Submission No. 200).
10.2.5 Step 5: Submissions, Panels & Advisory Committees This step covers the submission process, and the consideration of submissions by Planning Panels Victoria.
This report examines issues surrounding the role of PPV in Part 7.6. In that part, the Committee discusses possible changes to the extent of responsibilities of PPV.
There were submissions that made criticism of the panel process. For example, some submittors refer to the daunting experience of confronting experienced practitioners in hearings. Overall, however the submissions focus on improving panel practices for speedier outcomes and efficiency gains.
Some of the submittors support the idea presented on Page 34 of the Modernising Report about dealing differently with submissions to avoid
hearings. That report states:
“The principles of natural justice require that parties be given the opportunity to be heard by a panel, but this does not always require a public hearing. It may be sufficient in many instances to simply give parties the opportunity to make submissions in writing, or to comment in writing on the submissions made by others. Being ‘heard’ does not necessarily require being heard orally in person in all instances.” 10.2.6 Step 6: Adoption This step covers the requirement of the planning authority to consider the recommendations of a panel report and the necessary decision whether to adopt or abandon an amendment.
Submissions on this step of the amendment process focus on two aspects:
the right of the planning authority to abandon an amendment of its own volition; and the timeliness of this step.
As noted earlier, some submissions argue that a planning authority ought not be able to abandon an amendment without consultation with the proponent.
Contrary submissions argue that it is the prerogative of planning authorities to act as they choose.
Under the Act, if a planning authority proposes not to accept the recommendation of a panel, it must advise the Minister for Planning in writing of its reasons. However, the Act does not rule out a planning authority from abandoning an amendment a step that may be more than simply not accepting recommendations.
10.2.7 Step 7: Approval “This stage covers the submitting of the amendment to the Minister for Planning for approval and the minister’s consideration and decision, or approval of an amendment by a planning authority, once it has been certified by DPCD.” Source: DPCD website This stage was the subject of strong criticism in many submissions. Submittors, mostly councils, make the criticism that amendments disappeared into a black hole when lodged with DPCD for approval. There are no statistics available to allow the Committee to judge the truth of the situation. While DPCD maintains statistics on the number of amendments it deals with, there is no data on the length of time taken for approval. Moreland City Council’s submission (No.409) suggests that clear timeframes should be established for decision making by the DPCD.
A common grievance of planning authorities and proponents looking for a speedy conclusion to an already long amendment process, is that they are told that “the amendment is sitting on the Minister’s desk waiting for a signature”.
To avoid that situation and to speed the process, the Committee recommends reviewing internal procedures for dealing with amendments lodged for approval, with an aim for prompt decisions.
The Committee recommends that formal timelines are established, as Hume
City Council (Submission No.401) suggests:
“Council supports the introduction of statutory timeframes for each of the key steps in the planning scheme amendment process. Specific timeframes should be developed for all parts of the process, whether it relates to Council or State Government actions.” An individual submittor, Geoff Alexander (Submission No.114), offers a
possible approach to help remedy delays with amendments:
“The Planning Scheme amendments process averages approximately two years, however the process is typically not so intricate as to justify this length of time. One way to address this would be for Councils and the DPCD to submit to each other a monthly progress report (potentially just a paragraph long) on any movements that have been made on any C amendments that they currently have since the time of the last report. This will help to prevent amendments from getting lost somewhere in the bureaucratic gauntlet that they typically need to run through before being approved. Similar systems could be applied to other areas of planning where progress is slow.” Initial Report - December 2011 165 Victorian Planning System Ministerial Advisory Committee More general concerns with the planning scheme amendment process are
raised in submissions, such as:
The costs of planning to the council and the broader community;
The deterrent to strategic planning in rural municipalities given the need to meet strategic planning guidelines;
The drain on council resources to undertake amendments both as a council initiated proposal and at the request of another party;
The expense and workload issues that result from preparations for a contested panel hearing; and The low level of fees that a council can collect for a planning scheme amendment.
These issues are summed up in the submission by the Planning Institute of Australia (Submission No.443) which conveys the concern of planners
“various aspects of the planning scheme amendment process, particularly its slowness, Ministerial powers and prohibitive costs to Council.” The Committee acknowledges that there are competing views about desirable changes to the planning scheme amendment process. However, the Committee sees change as essential to improve efficiency for the benefit of all parties. The primary finding of the Committee is that there is an urgent need to determine a more efficient planning scheme amendment process.
The Committee also considers that the planning scheme amendment process may be impacted by the Committee’s final recommendations regarding the leadership of the planning system and the roles of the various participants.
KEY FINDINGS Planning Scheme Amendment Process
The Committee recommends:
That the planning scheme amendment process be streamed into different types of amendments along the lines of technical amendments, normal amendments and state significant amendments;
A review of all steps in the amendment process with the aim of making the process more efficient;
That the need for authorisation be reviewed or be subjected to strict time limits (not more than 10 business days) and if time limits are not met, the amendment is deemed to be authorised;
That to qualify as a submittor, a person should at least be required to show Initial Report - December 2011 166 Victorian Planning System Ministerial Advisory Committee how the amendment affects them;
That a planning authority should be able to dismiss a submission if it considers it to be irrelevant or vexatious, subject to a right of review;