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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