Fixing the Planning & Environment Act

This is the submission I made to the review of the Planning & Environment Act in 2009. It responds to the Modernising Victoria’s Planning Act discussion paper, which can be found here.

Summary

I believe the Planning & Environment Act is not fundamentally “broken” (with the possible exception of the amendment process, as noted in this submission). As such I would caution against wholesale changes that risk upsetting a basically sound legislative framework. However, the review of the Act is still to be welcomed as the Act does include many unnecessary irritants. While seemingly minor, a comprehensive clean-up of many of these longstanding problems would have a real and substantial positive impact on the functioning of the system.

My submission therefore focuses on identifying many of these irritants. However, I would also highlight two points of particular importance this submission:

• The planning scheme amendment process needs drastic streamlining. The amendment process is far too slow, leading to a culture of statutory stagnation and inactivity.
• The discussion of “secondary consent” in Modernising Victoria’s Planning Act perpetuates widespread misunderstanding of the existing provisions and should be the subject of further review. The Review’s Expert Panel should show leadership on the issue of secondary consent and act to decisively put an end to the practice.

Finally, it will be noted that at many points in this submission I suggest the appropriate remedies lie in other areas (usually changes to the VPPS, but also other governance practices). I appreciate that VPP review lies outside of the Act Review’s brief. However, if the Act Review examines some of these areas and agrees that review of the Act is not the appropriate remedy because another course of action is preferred, I hope that these preferred actions are clearly itemised. Given that so much of the content of MVPA seems to have origins in earlier reviews such as Better Decisions Faster, and given that those reviews are now several years old, it would be good to see this review result in a new action-item list for the government that saw complementary reform of the Act and VPPs proceed hand-in-hand.

Detailed Issues

The following comments are structured in response to particular sections of MVPA.

6.1 – One Size Fits All / Simple Permit Process

The idea of tailoring the permit process to the complexity of the application holds considerable and obvious appeal. However, in practice it seems this is best done through better application of tools available under the current Act and VPPs such as exemptions from permit requirements, or from notice and review.

The mooted fast permit process on page 21 of MVPA is built largely on pre-application certification of the application. As discussed later in this submission, I do not believe pre-application certification should be a focus of the new Act. In practice, it tends to “hide” real timeframes, rather than eliminating them, by shifting them out of the formal application process. It also raises questions about the independence of Council’s decision-making.

If we look at the other elements of the proposed fast permit process, I would make the following comments:

More detailed application form: the recently revised application forms are now quite comprehensive; it may be that this is a suggestion held over from before those changes. In practice, an even more detailed application form for simple applications risks making the system less approachable by confronting applicants for minor works with tax-pack style documentation obligations.

Referral responses to be sought by the applicant: There are two issues here. Firstly, like the pre-application process, this risks simply off-loading and hiding the time spent sorting out referral issues. In some cases it could even lengthen the real time taken by forcing it to be done prior to application, rather than simultaneously with other elements of assessment. Secondly, the VPP referral clauses increasingly allow for Councils to rely on prior written agreement from referral authorities in lieu of a referral during the application process, thus allowing some flexibility in the referral process.

The preferred approach to the issue of referrals would therefore be to:

• ensure the aforementioned VPP wording is applied as widely and consistently as possible to allow for written agreement between referral authorities and Councils;
• review referrals to ascertain how many are really required, since referrals in many cases shunt work into the planning system that really should be sorted out through a direct request to the referral authority outside of the planning system (the need to seek a planning permit application from Council for a crossover to a VicRoads road is a classic example); and
• encourage referral authorities to implement fast-track provisions where possible (for example along the models used by Moreland and Glen Eira for the SBO).

Refusal of incomplete applications: This has some merit, but could apply across the board and is not really part of a simple permit process. See discussion under Lodging an Application, below.

Alternative notification procedures: It seems this is best achieved through targeted widening of exemptions from notice under the VPPs, rather than legislative change.

Assessment under delegation: Confidence in delegated decision-making is indeed a key to speedy processing of applications, and the best Councils recognise this. However, I am unsure how the Act could force Councils to delegate their assessment. It would be interesting to know exactly what kind of change is envisaged in this regard.

A decision within 30 days: I have previously argued in favour of variation of the 60 day time to a staggered system allowing 30, 60 and 90 days depending on complexity.¹ I remain unsure as to whether such distinction could be drawn precisely enough to be helpful, but this certainly warrants further investigation. I would query, however, whether legislative change is needed: it may be that this can be done under the regulations given this is where the 60 day timeframe essentially resides.

Applicant and objectors have seven days to appeal: This has two problems. Firstly, it creates excessive risk of unjust outcomes where mail is delayed etc. Secondly, the simple permit process is surely best reserved for scenarios that are either exempt from notice or not advertised.

On site / on the spot appeal: This also seems unnecessary since applications suited for such a process probably should not be subject to notice or review.

6.2 – Lodging an application

I don’t consider the issue of rejecting applications as a crucial area for improvement, as I think the further information procedure (particularly as augmented a few years ago with the ability to lapse applications) generally covers the issues raised. However, some confusion has arisen surrounding lodgement of applications that are missing fees: are these denied lodgement, or does Council lodge and then request further information? This should be clarified to avoid disputes.

The reference to an enhanced application form appears to be an outdated suggestion carried forward from Better Decisions Faster. The current application forms are quite comprehensive enough and if anything should be slimmed down.

Pre-certification of applications is, in my view, something of a furphy. Many private planners currently assist in lodging applications, and their success rate in putting together adequately documented applications is decidedly spotty; I fail to see why they will suddenly get better at this when they start calling themselves certifiers rather than advocates. Such an approach would raise many questions. What happens if Council disagrees with the certifier’s view that the application is complete? Is there an obligation to pre-certify? If not, what are the rewards for doing so? Either way, what are the equity implications of obligating / encouraging use of planning consultants?

In an article for Planning News I have commented on the difficulties with certification and outlined what I think is a better approach to the problem which would require no legislative change.² Given the very lukewarm reception to the Glen Eira certification model (from both government and the private sector) I believe legislating for such a program would be a mistake.

6.3 – Notice of an application

I believe the current notice process is generally sound. The codification of “three classes” of notice requirement would actually be step backwards as it would lessen the flexibility to notify as seemed appropriate in any given situation. The chief problem with Section 52 at the moment is that if there is material detriment to any person, Council must notify to all adjoining owners and occupiers, whether they were amongst those assessed as potentially subject to the detriment or not. This can lead to some bad outcomes: eg if one wall of a building causes amenity impact on a site’s east boundary, a notice must go to the person on the west; if one person abutting a large site suffers potential amenity impact, notice might need to go to hundreds of people. The notice requirements should be reworded as an obligation to notify only any person whom it is considered may suffer material detriment, rather than the current “one in, all in” approach.

There is also a need to better define the term “adjoining” in this context. VCAT guidance on this point at the moment is inconsistent. This point would become less critical, of course, if the above approach were taken.

6.4 – Objections

I don’t see any major issues here and would not recommend making changes.

The idea of changing “objector” to “submitter” has been kicking around for years. It gives everyone a warm feeling, but the discussion of this approach frequently ignores procedural reality, or at least fails to make clear what is actually contemplated. To quote page 24 of MVPA [emphasis added]:

If this term was changed to submission it might encourage supporting submissions to be made and give the submitter a standing in the assessment process comparable to that of an objector.

What seems to be suggested here is that we invite people to make supporting submissions if they like a proposal (presumably signs and public notices might encourage this) but then treat the submission much as we do an objection. In practice, though, objections slow down the process, which means submissions in support may have a negative effect on a proposal. Do submitters who support an application receive an NOD? What if there are only submissions in support – is the application held up for the 21 day review period between issue of a NOD and a permit? Does correspondence generally in support but mentioning negative aspects count as an objection or a submission? While we might like to avoid negative terms, the advantage of “objection” is it helps convey to potential objectors / submitters that lodging of an objection has an adverse impact on the proponent, which is as it should be if we want to discourage vexatious objections.

Perhaps what is really meant is that we could have two classes: objections, which require a NOD to be issued and bestowed appeal rights; and submissions, which do not. A submission could be either positive or negative, but would be made on the understanding that the submitter was only offering a comment and did not wish to be bestowed statutory rights (I could envisage scenarios where someone wished to make a negative comment or observation but was happy to waive their appeal rights). That approach could have some theoretical merit, but I can’t see how it would work without mandating the use of an objection / submission form so that people could tick a box to clearly waive their rights. I do not think it is desirable from a natural justice point of view to require use of a particular form when objecting. Besides, at this point we are starting to talk about a rather complex solution to a fairly marginal issue; hence my suggestion that no change is warranted here.

6.5 – Referrals

I don’t see any particular problem at the level of legislation with referrals. As already suggested, the wording used in most VPP controls allow for some streamlining of the referral process where agreement can be reached at pre-app stage, so no change to the Act is needed. Similarly, there is scope to reduce the number of referrals and dramatically improve referral authorities’ procedures and understanding of their legislative role. However these issues lie outside the cope of this review as they don’t require legislative change.

The real issue with referrals relates to their interaction with the statutory clock. The operation of the clock is generally confusing and doesn’t adequately reflect actual “live” timeframes when dealing with referral issues and requests for further information from referral authorities. The “clock” should be overhauled as part of the current review, with the proposed new structure given careful scrutiny and road-testing by people with recent experience of actually processing applications.

6.6 – Making a decision

Again I don’t think that there is a drastic problem here. If decision-makers over-complicate simple matters, it is due to factors such as political pressure, workload, staffing levels, experience, extent of delegation, time spent lodging submissions to Act reviews, and the like. I don’t think anybody is spending too long processing a permit for a dog kennel because of what Section 60 of the Act says.

I note with interest this comment on page 25 of MVPA:

While more complex applications will need a more in-depth assessment, including consideration of policy issues, straightforward applications may only require a planner to confirm technical compliance with the provisions of the planning scheme.

The answer in such situations is not Act reform, nor is it private certification. The answer is better planning controls. My question is: if it only requires “technical compliance” with some black-and-white test, why is an application needed in the first place? Instead of labouring to create an Act built to deal with simple assessments, the Act should be framed on the assumption that planning permits are only required if some sort of meaningful expert assessment is required. We should then work on planning controls to ensure that this is the case and that only meaningful assessments are “captured” by the planning system. Simple things can either be addressed in building provisions or built into scheme on a “meet the test and no permit is required” model, as occurs now with the home occupation provisions. “Black-and-white” / “technical compliance” applications need to be recognised as an example of system failure, not something that needs to be facilitated.

One area regarding decision-making that could benefit from further attention is Section 96 of the Act. In practice much of its apparent effect is wound back by Clause 67 of the VPPS; it may be worth changing the Act so that it more transparently reflects the actual situation that occurs when Section 96 is activated.

Finally, I note that MVPA does not mention covenants anywhere. This is very disappointing. To save time, I will quote myself:

Given the cost of enforcing restrictive covenants, the move in 2000 to forbid the issue of planning permits in contradiction of covenants was understandable. Yet the practical result has been that Councils (and the Tribunal) are left trying to interpret and enforce private legal agreements to which they were not parties. Is it really the place of planners to be interpreting garbled legal agreements that they didn’t draft and don’t understand, which don’t relate to any valid planning consideration, and for which the only interested parties are long since dead? The problem of covenants was a legal one, and the real solution was law reform: Section 61(4) of the Act should only ever have been seen as a stopgap measure. The government should create more accessible means to enforce covenants, and better mechanisms to remove or vary them, rather than offloading a legal problem into the planning system.³

The requirements that decisions must accord with covenants should be dropped to avoid offloading legal disputes onto overloaded Council planners, and to ease the general regulatory burden that is created by the need to submit titles with all applications.

6.7 – Conditions

I do not wish to open the can of worms about ongoing enforceability of conditions on development permits (the Benedetti situation) except to note that yes, some kind of clarity on this point would be invaluable.

6.8 – Amending a Permit

So-called “secondary consent” amendments are an area in which I have taken a particular interest. My comments here are intended to expand on my previous comments on the subject.⁴

Secondary consent represents the most prevalent example of procedural abuse of the Act currently occurring. This is a situation of considerable concern and one that I will address at some length. However, I consider it warrants some detailed consideration as the misunderstanding of secondary consent has become so widespread. Indeed, the authors of MVPA are labouring under such misapprehension when they write on page 27 that “there is no defined process for considering a secondary consent request, or defined criteria for when this type of consent should be used.”

This statement is simply incorrect. Section 72(3) of the Act makes it clear that so-called “secondary consent” applications (that is, amendments to plans or documents approved under a permit) are considered under the provisions of Section 72.

I will attempt in the following discussion to demonstrate two fundamental propositions:

• There is simply no such thing as “secondary consent.”
• Even if there was, there shouldn’t be.

I will consider each point in turn.

There is No Such Thing as Secondary Consent

A more precise statement of this point would be as follows: there is no legislative basis for a “secondary consent” process other than the amendment process outlined in Section 72 and subsequent sections of the Act (hereafter referred to as “the Section 72 process.”) The Section 72 process is the valid means of amending all plans approved under a permit, and the widespread perception that another alternate “secondary consent” process exists is incorrect.

If this seems an overly sweeping statement, it is perhaps worth considering how shaky the basis for an alternative perspective is. The practice rests on a handful of Tribunal decisions: I am not aware of any court having been asked to consider the legality of the practice under the current legislation (ie since the introduction of the current Section 72). There is therefore no binding case law in the conventional sense.

So what basis exists under legislation? Secondary consent has been used for years, but for many years it operated in the context of the now-repealed Section 62(3) of the Act. I have no fundamental concern with the practice under this legislation. This is what Section 62(3) said:

The responsible authority may approve an amendment to any plans, drawings or other documents approved under a permit if—

(a) the amendment is consistent with—

(i) the planning scheme currently applying to the land; and

(ii) the permit; and

(b) the amendment will not authorise anything which would result in a breach of a registered restrictive covenant.

This section operated alongside the old Section 72 which said:

The owner of land, or a person with the consent of the owner, may ask the responsible authority in writing to amend a permit which applies to the land.

Thus a completely separate process was established for amending a permit (ie the paper document itself) and things such as endorsed plans. Importantly, Section 62(3) sat in the part of the Act relating to conditions, which reinforced the idea that the power to change plans ultimately flowed from a condition, although it would need to be administered within the constraints of the Section 62(3). Both processes (amending plans and amending permits) were murky, particularly Section 62(3), and the Tribunal played a large role in clarifying what was done with such applications.  As such, I have no fundamental problem with the approach to “secondary consent” under the old provisions.

However, the introduction of Section 72 and the removal of Section 62(3) extinguished the legislative basis for the practice. The current Section 72 says, as relevant and with emphasis added:

A person who is entitled to use or develop land in accordance with a permit may apply to the responsible authority for an amendment to the permit… In this section a reference to a permit includes any plans, drawings or other documents approved under a permit.

If I seem somewhat strident on this topic it is because I remain at a loss as to how this could possibly be any clearer. The new Section 72 removed the distinction between altering a permit, and altering a plan approved under that permit. If we collapse the above definition of permit we see that the Section 72 covers an application “for an amendment to… any plans, drawings or other documents approved under a permit.” The subsequent Sections of the Act go on to outline in some detail how this process works, and the regulations were changed simultaneously so that any such change was recorded on the permit.

It seems to me inescapable that the plain meaning of the Act is that amendments to the supporting documents under a permit – which by definition are governed and controlled by conditions on the permit – are considered under the Section 72 process. This not only accords with the plain meaning of the words in the Act, but it also ensures consistency and clarity, and ensures all changes are recorded on the permit. Unfortunately, ingrained procedural practices have been perpetuated at VCAT level even after the legislative basis for the practices has been removed.

The implicit assumption behind the ongoing application of secondary consent seems to be that one isn’t obligated to consider an application “for an amendment to… any plans, drawings or other documents approved under a permit” under Section 72. It is open, apparently, for a permit to create an alternate method of amending plans, by specifying in a condition that plans can be amended with the consent of the responsible authority.

This argument presents a number of problems that are inadequately explored in the existing VCAT decisions. Firstly, how is it legally tenable to argue that a mere condition on a permit can override a process outlined under the Act? The Act specifies a procedure for the exact situation of someone requesting a change of plans. Can a subordinate document under that Act really opt out?

Perhaps the reasoning is that secondary consent doesn’t override the Act because the Section 72 method is just “available” to an applicant, rather than being the obligatory process. Section 72 would therefore be just one option provided under the Act (never mind that considering the actual text of the Act it’s the only process given any recognition).⁵ An applicant can choose to amend a permit under Section 72, but they can also choose to amend it some other way, if a permit condition creates a mechanism.

But where does such reasoning end? Could I circumvent Section 72 for amendments to the permit itself? Let’s say I included in the permit words to the effect that “any condition on this permit may be amended subject to the consent of the responsible authority.” I think there would be an understanding that such an amendment to permit conditions wasn’t allowed, and that such an amendment needed to be made under Section 72. But why would this be more illegitimate than a condition allowing amendment of plans? The Act’s wording for amendments to conditions and plans is identical – under Section 72(3) they are the exact same thing. The distinction between amending permits and amending plans hasn’t existed since the 2005 changes to the Act, yet the ingrained thinking that there is something fundamentally different about the two processes has lingered.

In any case, what distinguishes Section 72 from other processes under the Act that we understand to be the specified way to achieve an outcome, rather than simply one available mechanism? We don’t say that a planning scheme could include provision providing for some other means of amending itself: Part 3 of the Act is the beginning and end of the discussion about how a planning scheme is amended. I see no reason to see the Section 72 process any differently.

Even if we did allow that a condition could create some alternate process to the Act’s, we find that we are looking at an enormous edifice built on a few words in a typical permit. We are not talking about permit conditions that explicitly outline a decision-making process, matters to be considered, types of amendments that can be made, and so on. Instead, the whole secondary consent process (and the various tests – relating to vague ideas of “transformation” and “consequence”- that have been invented to guide the assessment) is built on a few words in a typical permit: “…except with the consent of the responsible authority…” It is scarcely more than an aside. In the absence of any more specific indication in permits, it seems to me more appropriate to interpret this reference as meaning Council could provide further consent through the appropriate application process: Section 62(3) in the old days, and now Section 72.

There is no Need for Secondary Consent

In practice, perusal of the Tribunal’s reasoning on secondary consent reveals the Tribunal’s reasoning to relate more to its perceived usefulness than any detailed consideration of whether the practice remained lawful after the 2005 changes to the Act. However this pragmatic approach, too, is mistaken.

The crucial underpinning of the Tribunal’s approach, expressed in the decisions Westpoint v. Moreland CC ([2005] VCAT 1049 and Zuzek v Boroondara CC ([2007] VCAT 2174, seems to be that Section 72 is somehow “too hard” for simple applications. This concern is raised explicitly at paragraph 19 in Zuzek, and in Westpoint (the first crucial test of secondary consent following the introduction of the new Section 72) the Tribunal noted that “the planning system needs to be sufficiently flexible to accommodate the sort of changes likely to occur with a use or development over time or as a development proposal is implemented,” before quoting with approval these comments in the previous (pre-new Section 72) Mentone Mansions decision:

. . . Most planning projects undergo a design and development process which takes a considerable time, and the planning approval phase is early in that process.  As a consequence, after planning approval the development of a design for construction purposes, and the construction process itself, can result in a need to amend the development no matter how well resolved the development is at the planning stage.

The Tribunal then concluded that notwithstanding the new Division 1A, “secondary consents within permit conditions will retain an important role and the tests for exercising those consents as set out in Mentone Mansions will remain relevant.”

In particular, it seems that the Tribunal may have been bothered by the permit application-like quality of the Section 72 process; similar misgivings surface at page 28 of MVPA. In countering this argument I will revert to quoting myself:

…in practice, section 72 allows for a process as simple or as complex as the matter demands. While complex amendments under S.72 (such as ones requiring Notices of Decision to Amend a Permit, or imposition of conditions that apply to the amendment but not the permit) are notoriously confusing, for simple matters such as minor changes to plans the Division is actually extremely elegant. In practice, of the litany of complications foreseen by the Tribunal in Zuzek – “a formal application, referral and notice, and the prospect of third party objections and the rights of review” – only the first (the making of an application) would usually apply to a truly minor plan change. In effect, by activating sections 52 and 60, the Division simply asks us to consider the question of notice against the usual material detriment test, and to have regard in our decision to any relevant matters under the Act and Scheme. Planners should be uncomfortable considering anything less.

If a matter is simple, then, Section 72 provides as neat and straightforward a tool as we could want to assess it. We can turn our minds to familiar, well-tested sections of the Act. If we have to change only a minor detail, we can conclude that it doesn’t contradict anything in the scheme, and issue the amendment with as little – or less – fuss as we could under secondary consent. No doubt there are Councils who insist on over-documenting minor amendments and thereby make hard work of simple things, but why would these Councils not make equally hard work of requests under secondary consent?

The idea that secondary consent is somehow “easier” is therefore simply mistaken. So, for example, MVPA poses the suggestion on page 27 that:

[Section 72] is seen as unnecessarily complex for a simple amendment. There is a view that if an amendment does not impact on others or on referral authorities, and meets the normal criteria for not requiring notice, the responsible authority should be able to process it quickly.

Well, they can. If an applicant requests a simple plan amendment under Section 72, they need to fill in an application form and provide the new plans. If it doesn’t impact anybody, there’s no notice. If it doesn’t impact any referral authorities, it doesn’t get referred. So the Council can just write a very brief report or file note and issue it.⁶ This is not any more complex than the assessment than would occur for secondary consent applications. The idea that there is some unnecessary complexity seems to derive from poor practices at Council level, not the Act. Use of secondary consent does nothing to break down those poor practices.

In fact, secondary consent is actually harder to deal with for several reasons. Firstly, the secondary consent “tests” established by the Tribunal require assessment in addition to any matters needing assessment under the Scheme. So we have a whole extra area of assessment, based on Tribunal-specified tests that are poorly explained, the subject of much debate, and not found anywhere in legislation. The matters that need assessment under Section 72 (impact on others, consistency with the scheme etc) haven’t disappeared: it is just that with the candidates for secondary consent these decisions are considered to be all-but self-evident.⁷ However, they would remain equally self-evident if the application were considered under Section 72. So a secondary consent application needs assessment against everything a Section 72 application does, plus the Tribunal derived “tests.”

Secondly, the introduction of secondary consent has increased confusions about how permits area amended, with multiple options available to applicants. When a permit-holder asks how to amend a permit, they are now presented various options with their choices based on arcane distinctions. Applicants might lodge for secondary consent only to have Council decide they need to give notice: instead of just giving the notice, they actually have to re-lodge the application under Section 72. The focus should be on the merits of the application, not trying to work out which path to take it down. The best means to achieve this is the “one path for all applications” approach that Section 72 would have established if not for the Tribunal’s intervention.

Finally, the use of secondary consent means that changes to permits are no longer recorded on permits. The Deputy President of the Tribunal has now called for changes to the Act so that such changes are recorded,⁸ and this suggestion has been echoed in MVPA. But such a change would be unnecessary if we simply did not use secondary consent.

The only real pragmatic advantage of secondary consents is that it allows amendment of VCAT permits. I don’t believe that this justifies the continuation of the practice, however. Rightly or wrongly, the intent of introducing Section 72(2) seems clear: for whatever reason, it was intended that VCAT issued permits needed to go back to VCAT to be amended. I don’t agree with the decision, and I think few planners do, but that means the Act needs revision: it does not mean we should use secondary consent as a loophole to circumvent an aspect of the Act we don’t like. Of course, in the context of an Act review the option exists of fixing that problem and removing the last vestige of legitimate need for a secondary consent process. That opportunity should be seized.

In summary, then, I would strongly urge the Act review to:

• Re-introduce a method under the Act for making minor changes to VCAT permits.
• Categorically, unambiguously, and finally abolish the secondary consent process.

Of course, this raises the interesting technical question of how one uses the legislation to extinguish a process that has no legislative basis in the first place: as I have made clear, it is my view that the 2005 amendments already extinguished the legal basis for secondary consent. However, given the practice seems to be immune to all attempts to legislate it out of existence, I would encourage the Act review team to be even more explicit in its extinguishment this time.

7 – Planning Scheme Amendments

I will keep my comments on the scheme amendment process mercifully (or at least relatively) brief, as I do not wish to unnecessarily repeat comments I have made elsewhere. Additionally, my knowledge of the amendment process is not as “hands-on” as my experience of the permit process. So while my comments on that process were detailed comments, my observations about the amendment process relate more broadly to its general function and role in the system.

Put simply, my observation is this: the planning scheme amendment process need drastic revision to speed it up.

I developed this argument in an editorial for Planning News, and will not repeat the full argument here.⁹ In addition to that piece, I would also urge the Act review to seek out David Crowder’s article from the December 2008 issue, which expresses similar views and which I heartily endorse.¹⁰ It is anticipated that a further article on the topic of authorisation will appear in the June 2009 issue, and I would recommend that piece, too, to your attention when it appears.

There is currently a culture of stagnation with regards to planning controls. Controls take forever to develop (amendment timeframes average 22 months according to the Victorian Auditor General’s review) and as such, once in, are revised only with great reluctance. What’s more, because they are so unlikely to be changed, they tend to be built to be excessively open-ended and discretionary, which means that in practice they are much less useful than they should be. As I argued in the aforementioned editorial, this is leading to a proliferation of site-by-site battles through permit processed rather than clear and timely use of scheme controls to guide development. It is also leading to dysfunctional controls being left in planning schemes, while useful reforms are not introduced.

A general mindset has been allowed to develop that amendments take forever. The challenge for the Act review will be to put in place a framework that breaks down that culture.

Changes should include the following:

• Introduce decision timeframes, with circuit breaking “failure to decide” appeal rights as exist for planning permits.
• Create greater flexibility in the notice provisions to avoid overly wide or lengthy consultation processes.
• Introduce appeal rights so that planning authorities can no longer simply decline to pursue amendments, or refuse them without adequate basis.
• Roll back the counterproductive authorisation and certification processes.
• Mandate reporting of timeframes along the lines of the Planning Permit Activity Reporting; this must include full reporting of Ministerial and Departmental timeframes.

Conclusion

I appreciate the opportunity to submit to this review and look forward to seeing further action in regards to legislative review. As I said at the start of this submission, I hope that conclusions about the Act are not reached without consideration and discussion of complementary changes that should be made to the VPPs and other aspects of the planning system.