«December 2011 Victorian Planning System Ministerial Advisory Committee Initial Report. Geoff Underwood, Chair. Catherine Heggen, Member. David ...»
Where submission issues are limited, the nature of a contested panel hearing should be geared towards that limited issue (this may involve a varied hearing process or a consideration of the matter on the papers);
That the various decision points required of a council acting as a planning authority be reviewed so that once an amendment process commences (by exhibition), it must proceed through to at least a panel; and That further consideration be given to whether a panel’s recommendations should be made to the planning authority or directly to the Minister.
10.3 Enforcement There is little point in making improvements to the front end of the planning system only to potentially see it let down at the back end. Compliance and enforcement are therefore key issues.
If it is important to ensure that there are processes to encourage good planning outcomes at the commencement of an application, it is equally important to ensure the conditions carefully inserted in approved permits are complied with, and if not, that they are enforced.
In a number of submissions and through its consultation processes, the Committee heard of a lack of resources for enforcement. Councils and the Planning Enforcement Officer Association’s (PEOA) (Submission No. 14) states that this is especially the case in rural and regional municipalities.
For example, according to the PEOA, most of the approximately 19 municipalities out of the 79 in Victoria that do not possess a dedicated planning enforcement officer are rural municipalities.
The ability to effectively enforce planning schemes, planning permits and agreements is integral to the efficient operation of the planning system. In the absence of enforcement, the planning system stands to be abused and would lose credibility. Generally, the municipal council is responsible for the enforcement of the planning scheme. Even where the Minister makes themself the responsible authority, enforcement functions invariably remain with the council.
Under the Act, there are generally four types of enforcement options:
A Planning Infringement Notice under the Act (Section 130);
A prosecution for an offence committed under the Act (Section 126);
An enforcement order seeking compliance with the planning scheme, permit or agreement; and An application to cancel a planning permit for a persistent breach of permit conditions.
The range of options is intended to enable a measured response to the nature of the breach of the planning scheme, planning permit or section 173 agreements.
Initiating any type of enforcement action is a serious matter. It alleges that the person or the respondent has breached the scheme and committed an offence contrary to law. The penalties for breach of a planning scheme, permit or agreement are not insubstantial. The maximum penalties are 1,200 penalty units13 and 60 penalty units per day for a continuing offence.
The PEOA submission (No. 14) is comprehensive if not overenthusiastic on certain enforcement related issues. The PEAO essentially seeks a greater
recognition of the role of enforcement by recommending that:
the State Government set indicators and give enforcement a higher priority in promoting planning;
responsible Authorities should be obligated to spend a higher proportion of their budget on enforcement and the development of suitable indicators;
and responsible authorities should be obligated under the Act to employ a planning enforcement officer.
Other issues raised by the PEOA deal with difficulties faced by enforcement
officers in undertaking their tasks, including the:
high degree of proof required for establishing a breach of the law;
different notice provisions required to access a property under the Planning and Environment Act and the Local Government Act; and alternative jurisdictions for taking action that vary between VCAT and the Magistrates Court with attendant levels of proof and punishment.
It is clear that additional planning resources need to be made available to councils to undertake enforcement. This is particularly the case in smaller councils and extremely pressing in rural and regional areas. In many councils it is not uncommon for the town planner to be a multi skilled person who wears multiple hats, including that of enforcement officer.
13 At the time of writing this report, under the Monetary Units Act 2004, 1 penalty unit in Victoria was equivalent to $122.14
Practical examples were put forward to the Committee from rural and regional councils such as the shires of Loddon and Gannawarra and the Swan Hill Rural City councils. These examples indicate that enforcement is an activity that at this stage is beyond the financial capacity of some organisations.
The Shire of Murrindindi (Submission No. 365) states:
“Enforcement issues are time consuming, expensive and politically difficult for local government to administer. Recommended enforcement procedures may vary. Any procedures and guidance that may be provided to local government will be of assistance, e.g.
standard procedures and letters. The DPCD / MAV should consider a scheme to establish and share resources for local government to administer enforcement matters.” The role of enforcement is a key part of the planning system and requires appropriate levels of resources and professional expertise to be allocated to its ongoing maintenance.
The Committee considers that the planning system should assist the enforcement functions of a council. One way of enabling this might be to enable councils to pool enforcement resources where they elect to do so. With the advent of Regional Growth Plans and a more regional approach to planning, the Committee considers that rural and regional councils in particular will start to think more about partnerships, and it may be that regional associations could be established to enable pooling of certain resources like enforcement officers.
The Committee considers that there should be the opportunity to undertake regional enforcement in the same way regional planning is currently undertaken. The Committee therefore considers it important to investigate changes to the Act that may facilitate this.
KEY FINDINGS Enforcement
The Committee considers:
All councils should provide a planning enforcement function within their municipality;
Adequate funding should be made available at local and state level to employ regional enforcement officers, with an option for an officer to operate across municipal boundaries; and The powers of entry and inspection in the Planning and Environment Act 1987 should be modified to match the corresponding power under the Local Government Act.
List of References A Guide to Planning Enforcement in Victoria (Planning Enforcement Officers Association, May 2007) A Leading Practice Model for Development Assessment in Australia (Development Assessment Forum, March 2005) Australia’s Angry Mayors: How Population Growth Frustrates Local Councils (The Centre for Independent Studies, 2011) Better Decisions Faster Opportunities to Improve the Planning System in Victoria Discussion Paper, (Department of Sustainability and Environment, August 2003) ‘The Better Decisions Faster Report’ Creating a Sustainable and Equitable Planning System – Position Paper (Environmental Defenders Office, 2011) Cutting Red Tape in Planning (Department of Sustainability and Environment, August 2006) Easements and Covenants: Final Report 22 (Victorian Law Reform Commission) Enforcement of Planning Permits (Victorian Auditor General, November 2008) Enforcement Processes (Working Group on Enforcement Processes, May 2009) Final Report New Format Planning Schemes (April 1999) First National Report on Development Assessment Performance (South Australian Government, 2010) Guide: Development Plans and Development Plan Amendments (South Australian Department of Planning and Local Government, August 2010) Lessons from Valencia: Separating infrastructure provision from land ownership (D Gielen and W Altes, TPR 78(1), 2007) Local Government for a Better Victoria: and Inquiry into Streamlining Local Government Regulation Draft Report for Further Consultation and Input (Victorian Competition and Efficiency Commission, April 2010) ‘The VCEC Report’ Making Local Policy Stronger (Ministerial Working Group on Local Planning Policy, June 2007) Modernising Victoria’s Planning Act A Discussion Paper on Opportunities to Improve the Planning and Environment Act 1987 (DPCD, March 2009) ‘The Modernising Report’
National Tourism Planning Guide: Regulatory Reform Priorities (Tourism and Transport Forum, June 2011) Performance Benchmarking of Australian Business Regulation: Planning, Zoning and Development Assessment (Productivity Commission, 2011) ‘The Productivity Commission Report’ Planning Permit Activity in Victoria 2009 10 (Department of Planning and Community Development, December 2010) ‘PPAR’ Report 1: Using and Interpreting Local Policy (Reference Group on Decision making Processes, September 2002) ‘The Whitney Report 1’ Report 2: Substitution and Amendment of Plans (Reference Group on Decision making Processes, November 2002) ‘The Whitney Report 2’ Report 3: Enforcement Measures (Reference Group on Decision making Processes, November 2002) ‘The Whitney Report 3’ Residential Flat Design Code, Department of Infrastructure, Planning and Natural Resources, NSW, September 2002 Review of Heritage Provision in Planning Scheme Advisory Committee Report (Heritage Provisions Advisory Committee, August 2007) Review of Section 173 Agreements Discussion Paper (Mark Dwyer Freehills, May 2004) Small Lot Housing Code Standards (Growth Areas Authority, August 2011) The Housing We’d Choose (Grattan Institute, June 2011) The Value of Urban Design (Commission for Architecture and the Built Environment, 2001) Third Party Appeals Against Works Approval: A Personal Journey (VCAT, 2004) Third Party Participation in the Planning Permit Process (VCAT, 2005) Towards a New Development Model for Housing Regeneration in Greyfield Residential Precincts (Australian Housing and Urban Research Institute, July 2011) Unlocking Victorian Tourism Draft Report (Victorian Competition and Efficiency Commission, 2011)
Member declared a potential conflict of interest and stood aside from the consultation session:
# Geoff Underwood * Leigh Phillips ^ Terry Montebello
Appendix 3 List of Submittors Submittors listed below have been generally categorised according to how they identified themselves from the categories provided in the standard cover sheet form required to be completed with all submissions.
A total of 547 submissions were lodged. Those submittors that nominated to maintain anonymity are not listed.
Initial Report - December 2011