Posted 29/3/10
Loss of Rights & Powers
State Government Tries To Gag Planning Objections By Making People Pay To Object
Restore Residents' Rights Protest Rally Gets Up Development Industry's Nose
Development Assessment Committees [DACs] That Disempower Councils and Communities Are Coming Closer
See also Planning Backlash, DACs
(17/9/09 - P) Get off!
Another ridiculous but typical move by a State government seemingly hurtling out of control: this time it's the idea of making residents pay to object to ghastly development or development that affects other people. You can read more about it in the following Age stories.
Age editorial
http://www.theage.com.au/opinion/editorial/fasttrack-planning-takes-an-undemocratic-turn-20090910-fjbg.html?skin=text-only
Premier gets cold feet:
http://www.theage.com.au/national/planning-objector-fee-not-on-agenda-20090910-fje2.html
Justin, nice guy, really:
http://www.theage.com.au/opinion/stone-the-crows-the-ministers-unavailable-20090910-fjbo.html?page=-1
MRRA Says:
The government really should try listening to all of the people who vote, not just those who pay massive amounts to influence the government's thinking, and in particular to eliminate all "obstacles" to doing anything those people want.
Can anyone tell us when, precisely, did Victoria become a dictatorship?
(30/5/09 - P) "Tick box" planning approvals, with Councils and community left out in the cold, finally begin to kill off the notion that Victoria is a democracy with a strategically-based planning system
Last Thursday, by Ministerial amendment VC56 and without public consultation, the Victorian government introduced new planning provisions into all planning schemes in Victoria. The amendment also forced radical new processes for decision-making on the State, without changing legislation to enable those processes to occur.
Amendment VC56 consists of two new Particular Provisions, Clauses 52.40 Government Funded Education Facilities, and 52.41 Government Funded Social Housing. In addition, two new Advisory Notes (which don't carry any statutory or legal weight - i.e. they are not mandatory) set out new approvals processes that give building surveyors authority to approve development without planning permits (for education facilities), and the Minister for Planning final (and sole) control of approvals. Councils' powers to make planning decisions are removed, and residents have no third-party rights to know about, object to and appeal against development applications. New buildings and works can be approved in any zone, anywhere in the State. The public will not be consulted.
Click here to see the key features of the new provisions, Advisory Notes and processes.
The government justifies making these sweeping changes by claiming they are needed to ensure Federal funding, recently allocated in the Federal budget for education facilities and social housing development, is spent within the short time frames set by the Federal government. It is also claimed the funding will create jobs (in the construction industry).
Under the new provisions/processes for education facilities:
Planning permits are not required, and planning scheme prohibitions on demolition, along with requirements for development to occur in certain ways, are overturned.
Building surveyors can approve new development - buildings and works - if "tick box" criteria are met. Otherwise, the Minister gives approval.
Copies of approved proposals are to be lodged with Councils, and Councils are required to enforce these decisions, although where the process goes if Council enforcement fails isn't stated.
Clause 53 of the VPPs, which delivers the Yarra Ranges' Regional Strategy Plan, has been amended to give Federally funded school projects the 'no-permit' go-ahead.
Buildings over 12 metres high cannot be approved by building surveyors, but are referred to the Minister who could approve 12 or more metres' height as there is no limit given for building height.
The Minister but not building surveyors can approve proposals in Green Wedge land.
Because this process has not been included in the Planning and Environment Act, there are no residents' rights that apply or can be extinguished.
The provisions/processes for social housing are even more contentious.
The Minister for Planning replaces Councils as the responsible authority for decision-making.
Planning permits are required but are dealt with by the Minister.
Applications are to be signed off as 'complete and correct' by private planning consultants.
Applicants are to meet with Councils before lodging applications and submit their summary of the discussion to the Minister, with the application.
Residents' rights are extinguished by Clause 52.41 for applications for accommodation (this term includes all forms of residential and paid accommodation) under any provision of a planning scheme. The Advisory Note for Clause 52.41 (social housing) indicates previously approved planning permits issued for "priority" projects can be amended.
It is not clear whether this includes permits issued by VCAT (the law only allows VCAT to amend permits it orders to be issued), but it provides an opportunity for 'awkward' conditions to be removed. There are no restrictions placed on building height, and buildings over 4 storeys can be approved (and seem to be anticipated by referring applications for 4 or more storeys to Clause 19 and the Higher Density Housing Guidelines).
There is nothing in the Clause or Advisory Note that excludes applications for buildings that provide both private and social housing.
It's not clear for either provision whether applications are to be referred to referral authorities, or who will do refer them (although it wouldn't be a surprise to learn applicants instead of Councils refer proposals); all that is required - and only where land is affected by an overlay - is written consent / approval.
There is no specific reference to rural, coastal, environmentally sensitive and fireprone areas, but these provisions apply to all. The standards to be met by development - if they can be called standards - appear to be anaemic, 'tick box' variations of ResCode.
Rushed job? Seems it might be. For example, the Advisory Note for 'schools' sets out a Building the Education Revolution [BER] certification process that fails to include what is said to be a key step - compliance with new Clause 52.40, and referral of non-compliant proposals to the Minister. And both Advisory Notes refer to a Wildlife Management overlay, which if applied to where the building is proposed, triggers having to get an approval from the relevant management authority. Problem is, there is no Wildlife Management Overlay in the Victoria Planning Provisions (it should be Wildfire Management), but in either case, just who exactly is the relevant management authority?
Click the link to see the approved Amendment VC56 documentation, including Clauses 52.40 and 52.41:
http://www.dse.vic.gov.au/Shared/ats.nsf/WebViewUniqueID/0f266f54d4b38217ca2575bd007a3690?OpenDocument&V&Victoria%20Planning%20Provisions&Victoria%20Planning%20Provisions&Click=CA256DC800080C18.476caac79d318ee2ca256dee001434f7/$Body/0.2A7E
Click the link to go to the Clause 52.40 and 52.41 Advisory Notes:
http://www.dse.vic.gov.au/DSE/nrenpl.nsf/LinkView/A43412BBE06AAD9BCA25733800838956F6AD6161A7CF8626CA2572FF00260672#Advisory
MRRA Says:
The real import of the government's actions in arbitrarily suspending democracy and converting 'planning' into 'development and jobs delivery', this time under the guise of spending Federal funding, is that it is part of a broader takeover agenda that is currently in train.
That agenda is embedded in proposals to change planning law in the recent Planning and Environment Act review Discussion Paper.
There, the agenda and the undemocratic tools intended to implement it loomed large. Deregulation features prominently - 'speeding' planning up by getting rid of rules and standards developers find tiresome, and along with them throwing out democracy, transparency and accountability. Filching selective pieces of legislation from other jurisdictions and popping them into Victorian legislation. Stripping processes down to rubber stamping, a technical 'tick box' compliance. Eliminating checks and balances, focussing not on planning principles but wish-lists of pet players of the day. Putting foxes in charge of hen houses. Assumed, automatic 'no-brainer' approval that side-steps the need to measure planning applications strategically against whether they should proceed, by going straight to dickering around with how they will happen. Shutting out any who may object to their property or street or town being done over by developers. We know, because MRRA made a submission on the Planning and Environment Act review Discussion Paper.
This corrosive agenda is also embedded in legislation currently going through parliament to create Development Assessment Committees [DACs] to take planning off Councils, and the community. It has, unsurprisingly, been passed by the Labor-majority lower house, but still has to tackle the upper house and this is scheduled to happen in the first week of June.
All this talk of legislation brings us back to an issue we have with the introduction of Clauses 52.40 and 52.41. Where's the legislation for the changes to planning processes in this amendment? Can a Minister for Planning change planning processes in Victoria by Ministerial amendment, without changing the Planning and Environment Act?
The Minister has authority under the Planning and Environment Act to make amendments to change planning schemes, without consultation. It's a power that should be used thoughtfully and judiciously, and solely in furthering planning principles. On this occasion, however, a Ministerial amendment has been used not only to change planning schemes but to introduce a new way of operating, for which there is no enabling provision in the Planning and Environment Act.
As we said, decision-making processes similar to those that come with VC56 are also proposed in the Planning and Environment Act review Discussion Paper. In the review at least, there is recognition that the Act would need to be changed to authorize and enable such processes - why didn't their introduction last week need legislative change and parliamentary endorsement as well? For example, which part of the Planning and Environment Act authorizes a Building Surveyor to make planning decisions?
Instead, we have a situation where the Act is silent on these processes, and as we have seen with Development Plan Overlays, when an Act is silent there are no legally binding processes and no rights. Process is just left to be picked over or made up on the run.
For VC56, support for and explanation of the changed processes comes not from legislation but non-binding, non-mandatory Advisory Notes. It's potentially a legislative nightmare, because at the same time, VC56 processes also seem to conflict with and over-ride processes that are addressed and enabled by the Act.
We can understand the government's political imperative to avoid at all costs having to change the Act at this stage because it would entail presenting the changes to parliament, and approval might not be forthcoming from the Upper House. Our question is, does the introduction of these new processes - and do the processes themselves - have legal standing?
A clear pattern is emerging, and VC56 can be added to the list already populated by the government's initial attempts to deprive residents of their rights in the new Residential zones, the ramrod Development Assessment Committee legislation, attempts to gag Councillors and candidates with draconian draft proposals for declaring conflicts of interest where pretty much anything was a conflict, farcical Environmental Effects Statement [EES] processes undertaken for the bay dredging, north-south pipeline and desal plant, an apparent ability to change law via Ministerial amendment without changing the law, and the prospect of having the horrors proposed in the Planning and Environment Act review Discussion Paper forced down our throats in the future.
There's more than a whiff of naked ambition to root out and shut out "troublemakers" like the community and now Councils, to set up 'exclusive' (and we don't mean 'top shelf') processes for whipping approvals through and not many questions asked, and for constructing a planning system so devoid of connection to the true concept of planning, so undemocratic, so lacking in accountability and transparency it tends to render rubber stamping a complicated process.
No surprise then that VC56 not only extinguishes residents' rights but Councils, that building surveyors have been handed more say than either, or that 'permit-less' development can occur regardless of zoning - in the Rural Conservation, Farming, Special Use or Industrial zones - as long as it has Federal funding. It's such a small step from applying this process to Federal funding, to applying it to everything.
Yet think back, if you will, to some of what this State government said its values were before it was elected in 1999 (Planning for the future - Labor's position paper on planning policy. Prepared by Mr. John Brumby, MP, Leader of the Opposition and Mr. Demetri Dollis MP, Shadow Minister for Planning. August 1998):
"The Minister for Planning has interfered in planning processes on an unprecedented scale too often in ways that appear to be inequitable and favour some people over others" P1
"... the community must have confidence in the ability of the planning system to
deliver efficient and certain outcomes". P1
"Unfortunately, the Kennett government has eroded the community's respect for the
planning system." P1
"We must resolve this crisis in confidence and create partnerships between all those
involved. This task requires leadership and vision and a strategic plan..."
P1
"New partnerships between State and local government, the building industry and
communities should provide the framework in which genuine strategic planning can
enable socially just, economically and environmentally sustainable results.
In this way we can ensure that our particular way of life not only evolves into
the twenty-first century, but that what we value most about our society is preserved".
P2
"Victoria's planning system is in crisis. The Kennett government has mismanaged
fundamental planning and development issues. Urgent action is needed to restore
the system to what it should be - accountable, efficient, cost effective and able
to deliver economic benefits while protecting our built and natural environment."
P4
"Labor will create partnerships between local government, industry and local communities
and undertake a number of initiatives to rebuild community confidence in the planning
system." P4
"A planning framework is required that guarantees strong third party rights, accessible
avenues of appeal, proper disclosure of information about development decisions,
transparent decision making and certainty for all participants in the planning process."
P5
Life seems to have come full circle, doesn't it? It's so very hard to reconcile this thinking with the reality of a government now pushing to intervene in planning matters in an almost unlimited way, of a Minister for Planning publicly stating that anything that creates a job will get planning approval, of a campaign to strip planning of transparency and accountability, of hearing developers are wearing a hard-earth track to Spring Street while communities and Councils are progressively pushed out of the system.
Regardless of any 'good works' inherent in improving education facilities and social housing, concurrent efforts to cynically and deceptively dismantle Victoria's democracy and planning system to get there just aren't on. The end does not - cannot - justify the means.
The government is increasingly seen as an arm of the development industry acting for development interests, not the public interest, and using smoke, mirrors and spin to do it. The problem the government faces is that there is increasing loss of public confidence in both the government and the planning system, and historically, loss of public confidence leads to loss at the ballot box.
(21/6/09 - P) Yeehaa - success!
Comments issued by the Property Council of Australia, in the wake of the June 10 community rally at parliament house protesting against the Victorian government removing Council and residents' planning rights, send a signal that the rally seems to have hit home.
The day after the rally the all powerful Property Council of Australia - of which the Department of Planning and Community Development [DPCD] is a member - hit out against all those nasty 'nimbys' and 'bananas' who are trying to scuttle (its) planning 'reform'.
Said the PCA:
"The debate has been skewed toward a vocal minority, arguing all proposed planning reforms will take away residents democratic rights."
"We do not understand why the DACs are being met with heavy
opposition. DACs are independent panels, with representation from both levels of
government, state and local, making decisions in line with local policy, how much
more democratic can that be?"
"Growth is not a dirty word."
The organizers of the rally, Planning Backlash and the Coalition of Concerned Councillors, apparently took PCA's comments to mean the rally was a stunning success. Thanks to the PCA for providing such swift and comprehensive confirmation. Click here to see every delicious word the Property Council of Australia had to say. Enjoy.
MRRA Says:
Well, derrr!... Are we right in thinking PCA just doesn't get democracy? Nor apparently does it see local policy being as ineffectual as everyone else does. Never mind, we will generously give them a gold star and elephant stamp for an exemplary display of self-interested, self-righteous, self-justifying spin. Ho, ho - what a warm feeling we get from knowing "a vocal minority" can generate "heavy opposition".
Oh dear, can we put all this down as a bit of a dummy spit? A wee tantie or two 'cos those 'unwashed' pests, the people, are jacking up about the PCA appearing to set itself up as a de facto government (hmm, or should that be the government setting itself up as a de facto development industry?).
You bet your sweet pitootie residents are fighting the PCA's idea of 'reform' which is blatantly biased and intended to advantage the few (them) while ripping constitutional and democratic rights off 'the rest' (us) to shut us up and shut us down. Help us out here - isn't that usually an attitude that provokes revolution? Perhaps the development industry should turn its mind to the historical fate of those who indulge in despotic behaviour: all powerful, all controlling - for a while. The wheel always turns, and there are a lot of people presently putting their shoulders to that wheel urging it on.
Is growth a dirty word? It is when it's a cancer, when it is rampant unchecked growth spreading without end, without discrimination, and without care for the damage being done to the host body.
Which brings us to the Department's membership of PCA. No gold stars or elephant stamps for guessing what ideology and interests influence the department, and government. We'd like to think that if Victoria is still a democracy, the department would be keen as mustard to equalize by becoming a member of community groups (plenty to choose from), if for no better reason than to dilute community perceptions of the department and government being in the development industry's pocket. Um... or should that be the other way around??
Think of the glorious diversity and er, flexibility if not certainty that could permeate the department's thinking if it had such a dose of community values and spirit, not to mention picking up some basics about natural justice. Revolutionary thought, indeed!
Our au revoir message to the PCA is, there are more of us than there are of you - and we all vote. Cake, anyone?
(30/5/09 - P) Shadow Minister For Planning, Matthew Guy, explains how DACs will impact on your Council
The Brumby government has moved the Planning Legislation Amendment Bill 2009 through the lower house, and it is expected to go to the upper house of the Victorian parliament next week. The Bill changes the Planning and Environment Act to allow the government to introduce centralized planning through Development Assessment Committees [DACs], where planning decisions are made not by Council but a Committee of 5, with the chair apparently appointed by the State government.
Click here to see Matthew Guy's alert.
You can access the Bill (in its amended form) by going to http://www.legislation.vic.gov.au/ ... parliamentary documents... ...Bills... ...Planning Legislation Amendment Bill 2009... ...choose Amended Print. TThis will give you the Bill in its current form. To understand more about the Bill, check the Introduction and Amended versions of the Explanatory Memorandum from the same web page.
MRRA Says:
We've often given our Councils a serve and a spray for being planning dummies, and would welcome some improvement. But not this way. We've got just one word to say to the State government: Drop your DACs.