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A LETTER TO THE MINISTER FOR PLANNING FROM INNER-CITY ARCHITECTS

6 September 2002

The Hon. Mary Delahunty MP
Minister for Planning
80 Collins Street
Melbourne 3000

Dear Minister

RE: STATE OF THE PLANNING SYSTEM

We, the undersigned architects working in the inner-city area, urge you to take immediate and effective action to fix what has now become a dysfunctional and costly planning approval system.

This 'system' is making architectural practice in inner-city work an impossible task because of the endless delays in dealing with unhelpful councils and the inevitable referral to VCAT even for the simplest of projects. It is also imposing an intolerable cost on households wanting to improve their homes, and small developers. Indeed the situation has now been reached where inner-city households, in need of additional room, are better advised to sell up and buy an already renovated house rather than confront the expense, frustration and uncertainty of seeking approval for a simple house extension.

If you're not convinced there is a crisis consider these recent tip of the iceberg examples:

The first involves a second level rear extension to an inner suburban house. Although it didn't overlook or overshadow adjoining properties planning approval took 18 months. In the process it required the services of 2 design architects, 2 heritage architects, a builder, a town planner, a lawyer and a VCAT hearing to unravel the council's mishandling of this simple proposal. What is even more remarkable about this case is that the responsible local planning officer recommended to the applicant to take the proposal to VCAT to get a decision (in the face of council indecision because some residents didn't like the look of the extension). This sorry saga imposed an unacceptable and unnecessary level of stress on the homeowners (not to mention the financial cost).

The second example concerns a couple who purchased a rundown retail property in an inner Melbourne commercial 'strip' with a view to redevelopment and resale. They engaged an architect to prepare the necessary plans - he took the view that, although the property was not heritage listed in the planning scheme, the façade/front section should be retained because it was within a heritage overlay area. With the owners' agreement he prepared plans which he took to the council for discussion. To the architect's surprise the responsible officer (a senior planner) strongly advised him to demolish all of the existing building (citing its non listing) and prepare revised plans for a totally new structure. Under protest he relented and subsequently lodged a planning application for a new building. After some delay he was advised that the council had rejected his application citing heritage advice - this argued that the building's non-listing was a mistake and that council should now 'retrospectively' list it.

The above case did not go to appeal due to the costs already incurred by the owners - they were forced instead to resell the property to minimise further losses. A compensation claim is now being lodged with the relevant council.

Another example again concerns a rear extension to an inner suburban house. At the inevitable Tribunal hearing for non-determination, Council objected to approval because 'it will block a glimpse of the lower portion of the [name of suburb] shot tower' between the subject land and adjoining property. Council also argued that externally hung sewer pipes (installed decades after this period house was built and earmarked for removal) should be preserved on heritage grounds! The Tribunal of course, threw out these spurious propositions.

(Minister, we can provide you with applicant and application details if you wish to check the bona fides of these quite extraordinary, but nevertheless common examples of a planning system in disarray. If you require more examples please advise.)

Why is this happening?

The primary problem is the volatile mix of under-resourced and inexperienced local planning departments and unnecessarily complex planning schemes with their numerous 'overlays' (heritage, character, vegetation etc) plus Rescode (formerly the Good Design Guide). 'Overlays' are invariably worded so as to give councils the maximum possible discretionary power. So, depending on the calibre of the planning official (and in many areas, the heritage 'advisor'), architects and applicants are pulled in many divergent directions as the officials strive for new interpretations of the council's planning scheme. In the process time marches on - at the applicant's expense. Furthermore, in the game of to and fro, officials often engage in quite flagrant misuse of the discretionary power afforded to Councils under their planning schemes.

It is now well acknowledged that lack of local planning skills and experience is an ever-worsening problem. With the 'system' degenerating into farce experienced officers are leaving local government for the more lucrative activity of advising applicants on how to unravel planning controls and cajole councils into making a decision.

The drawn out attempts to 'overhaul' planning (through the introduction of Rescode) has made the problem worse first by causing a rush of applications (to 'beat' its introduction) and second by giving yet more discretionary power to councils (eg the 'character overlay' which will inevitably become another new 'planning' minefield resulting in more indecision, contradictory advice to applicants and costly delays).

Rescode has also introduced a number of new amenity standards that are not achievable in an inner-city context. Take for example the revised standard that 75%/40m2 of adjoining private open space (in an application context) should be capable of receiving direct sunlight for at least 5 hours at the equinox. After taking into account the shadows cast by existing structures, including fences, this standard is effectively preventing new development (be it extensions or otherwise) in many inner-city settings. The message here is that one size does not and cannot 'fit all'.

We also believe that the Rescode 'saga' has created a very unhealthy culture in councils and their planning departments. These are now environments where:
" time doesn't matter (using the 'cover' of application overload);
" inaction is better action (for fear of upsetting objectors with a decision);
" in a heritage overlay area, you don't approve it if you can see 'it' from the street;
" and, in the pursuit of the 'perfect' residential character, you don't approve it if it's different.

The 'inaction' culture, in particular, is causing the now well publicised explosion of appeals to VCAT for non-determination. It now takes up to 9 months and $7,000 -$10,000 (for applicants) to have the simplest of appeals processed. The overloaded VCAT in turn, is yet another innocent victim of a planning system in meltdown.

What Is The Solution?

We understand that your Department is conducting a review of VCAT and its procedures. What concerns us is that, as with the Rescode process, the outcome will not address the real issues of councils' under-resourcing, poor skills and unnecessary, costly delays as well as VCAT's overload problems.

You need to put in place a range of corrective measures to address both immediate issues and systemic problems - here's what should be done:

resourcing

1. The first action is to clean up the enormous backlog of applications sitting in council in-trays. You can do this by assembling (at the State's expense) a 'team' of experienced town planners/design architects/heritage architects, for use/hire by 'overburdened' and inexperienced councils. This should remain in place until processing times are brought down to a reasonable level. A side benefit would be that experienced consultants could move back (via engagement by councils) into the game of preventing conflicts between applicants, councils and objectors early in the application process.

2. Complement the above by arranging for the immediate appointment of temporary or sessional members to VCAT to help overcome the quite serious appeal overload in that Tribunal. Appellants and respondents alike should not have to wait for 9 months or more to have planning application issues determined. Furthermore it is quite unfair to expect the current members alone to deal with the explosion in appeals that is not of their making.

heritage controls

3. Clean up the heritage 'overlay' documents to tighten the decision guidelines and make them more instructive as to what's acceptable and what isn't in individual residential precincts. Part of this will mean the removal of overlays where they have been indiscriminately allocated to areas using a 'just in case' logic. It is a task that requires extensive on-ground assessment;

4. Set minimum standards for the resourcing and qualifications of inner city council heritage advisors. In the case of resourcing there is, at present, an insufficient number of council employed heritage advisors to administer the geographic extent of heritage overlays in the inner city;

review Rescode

5. Drop the notion of blanket residential 'character' overlays and replace them with more instructive area specific envelope guidelines, where required in sensitive residential neighbourhoods (at the moment 'residential character' directives are little more than a requirement on applicants to assemble volumes of costly data on a area's physical features on the off chance that it may be relevant to a decision). This action will reduce the scope for arbitrary advice and decisionmaking and reduce application costs;

6. Put in place an immediate review of the achievability of the new Rescode amenity standards in the built up areas of the inner-city. These include the overshadowing, open space and boundary wall standards etc. In our view the mismatch will become yet another source of conflict between applicants, councils and objectors.

7. Remove the planning approval requirement for single storey rear extensions - the building permit process can easily establish whether Rescode's measurable amenity standards (in relation to overshadowing, overlooking, open space etc) are being met. This will take an unnecessary workload off the planning system;

enforce the law

8. Instruct councils and planning officials on their legal obligations under administrative law when exercising discretionary power under planning law (ie the notions of due process, fairness, proper assembly of the facts and adherence to statutory decision criteria etc). It is only a matter of time before the courts are asked to deal with damages claims arising from the misuse/abuse of discretionary planning powers by councils and their delegated officials;

streamline council processes

9. Allow applicants to use private planning 'certifiers' (registered by the State) to verify the adequacy of information in an application and its conformity (or otherwise) with Rescode's measurable standards. This will save time and money and stop councils & objectors arguing that black is white;

10. Limit the period within which third parties can lodge objections with councils. Although the Act allows two weeks councils' standard practice is to allow objections up to the day a decision is taken on an application (which now can be up to 6 months from the date of advertising). This leniency is being abused by individual objectors who, upon hearing that only a limited number have been lodged by the end of the statutory 2 week period, solicit further objectors to pressure council. A maximum of 4 weeks should be allowed after which the door should be closed.

11. Vary (but enforce - see item 12) the minimum statutory determination period according to the complexity/size of development proposals - for example retain the current 60 day period for single dwelling house works; allow 90 days for medium sized projects (up to the equivalent of 5 to 6 units) and 120 days for large projects. This will encourage councils to be more strategic in managing their application load (eg. get the simple applications processed and out of the system to provide scope to focus on more complex application issues). It will also stop large developments bypassing local planning by going straight to VCAT after 60 days;

12. As a necessary corollary action to item 11 above, prevent councils from appearing at hearings where the appeal is for non-determination - this will encourage councils to be more time conscious;

filter VCAT appeals

13. Require all appeals to go through the equivalent of a 'committal' process to test their veracity. An experienced (VCAT) official could easily review the appeal documents and advise the appellant whether or not there is a case to answer. If the appellant rejects an adverse finding and subsequently loses the appeal they should be liable for the respondent's costs (at VCAT's discretion). This will stop mischievous appeals clogging up VCAT; (see also item 2 above)

training

14. Finally tackle the problem of training - the starting point here is to acknowledge that (residential) development control is primarily about assessing the design merits of planning applications. In this context development control (as a discipline) should be a specialty stream of the design professions. It would be much easier, for example, to train an architect in the nuances of planning controls than it is to train a town planner in the art of good design. Under this model town planners would focus on urban policy (which is the core of this profession eg making the 'overlays' work for local areas) rather than trying to apply an untrained/undisciplined design logic to planning applications.

Minister, this is not about dismantling the planning regime - these actions are about injecting fairness, reasonableness, commonsense and professionalism into the system. Furthermore, if your 'new' metropolitan strategy is to be effective in containing urban sprawl you have to take action on the administration of statutory planning.

Yours sincerely,

[names removed by butterpaper to protect the innocent from websurfing planners]

{Note: addresses and signature certification removed by butter paper).



 

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