Fixing the Victorian Planning System: Six Key Issues

What follows is a slightly edited version of my submission to the Underwood review into the operation of the Victorian Planning System (I wrote about that review back in June). With the committee due to report back early in the new year, I thought it would be timely to post it here since it’s one of the longer pieces I’ve written about the systemic problems with the Victorian planning system. A couple of points have been altered slightly to make it read better in this context, but mostly it’s as submitted.

I took a long time to post it as I have some reservations about it. I would have liked to have covered more nitty-gritty issues, which would have allowed me to be more specific and hence more constructive. Unfortunately time – and more particularly, a disillusioned sense that I wasting mine – got the better of me, so it ended up tackling just a few of the higher level systemic issues, rather than delving into detail. A more comprehensive overview of my take on the problems with the system would be gleaned by taking this in combination with the article Building a Better System that I co-wrote for Planning News (from which parts of this are cribbed), as well as my submission to the review of the Planning & Environment Act.

Introduction

The current review of the planning system, focussed as it is on the Victoria Planning Provisions, is to be welcomed. When the previous government announced its review of the Planning & Environment Act there was a general feeling in the industry that the emphasis should instead be on the VPPs. While reform of both the Act and VPPs should continue hand in hand (and my submission to the Act Review is here), it is the VPPs that are more fundamentally dysfunctional. This is the area in which I believe system reform initiatives can be most productive.

Since the announcement of the current Advisory Committee, there has been some commentary noting that there have been multiple system reviews over recent years, and questioning the need for another. However, I strongly believe that the current review provides a much-needed opportunity for a fresh approach. There has been a consensus evident across multiple system reviews that the VPP are “basically sound” (to use the terminology from Making Local Policy Stronger¹) but that some refinement is needed.

Furthermore, there has become a predictable suite of solutions across these reviews, with some proposed fixes (notably code assess, and certain VPP refinements) repeatedly raised as the answer. In my view this consensus that the system essentially fine and that certain “agreed fixes” will solve its problems has obscured the more fundamental structural and systemic problems in the current system.

The fact the VPP system represented an enormous advance over the previous planning scheme has led to an unwarranted complacency about the state of the system. I hope the Committee can move past the consensus evident in previous reviews and examine the structural problems that are impeding the achievement of planning objectives in Victoria.

I would summarise the key structural and systemic issues as follows:

• A failure to clearly define objectives.
• A failure of State Policy to provide meaningful guidance.
• A failure to resolve competing policy imperatives at the level of strategic planning.
• A continuing erosion of local policy (ironically only intensified by the findings of Making Local Policy Stronger).
• An inherent bias towards over-regulation.
• Insufficient emphasis on empiricism and best practice in system review and monitoring.

These structural and systemic failures points are expanded upon in the following submission.

Failure to Clearly Outline our Objectives

Objective-setting might seem like a meaningless exercise, and perhaps the way we have come to define it in Victoria it is. Certainly I doubt many found the section on the Objectives of the Act in the Modernising Victoria’s Planning Act to be its most crucial section.

However, I raise this issue at the outset as I believe a tendency to forget what we are trying to achieve has helped to mask the failures of the current system. There is point no streamlining the operation of our regulatory framework if we are simply achieving minimal effect more efficiently.

If we stop seeing the system as a given, and ask ourselves how well the system is delivering planning benefits, I believe we get a more bracing view of the system’s operation. If we think of some of the things that planning should be doing, and the reasons keen young professionals get into planning in the first place, I would suggest we come up with objectives such as: creating a more ecologically sound built environment; improving housing affordability; curbing urban sprawl and directing development to areas with good access to infrastructure; and creating more people-oriented places and avoiding the negatives of car-oriented design.

I would suggest the system is not doing well on any of these fronts. There remains resistance to having meaningful sustainability controls in the planning scheme; the system does little to facilitate provision of affordable housing; the UGB continues to expand while we tinker with our planning responses for activity centres; and our city still expands in a classic suburban fashion with low densities, big-box and mall-based retailing, and an essentially car-based form.

The need to improve the specificity of objectives of planning scheme controls is a key theme of this submission and various ways in which this could be achieved will be discussed.

Suggested response:

• Increase the specificity of objectives and implementation measures in the Act and schemes.

Failure of State Policy to Provide Meaningful Guidance

Many have noted over the years that the State Planning Policy Framework is overly general, and not subject to the same level of ongoing review and revision as is expected of Councils’ strategic frameworks. As we pointed out in Planning News:

A key concern has long been the SPPF’s Neapolitan character; that is, there is a flavour to suit everyone. You want to approve units to increase density? The SPPF supports that. You want to refuse units based on character? The SPPF supports that. You want to supply enough land on the fringe thus avoiding having to build units altogether? The SPPF will again help you out.²

This was a point addressed in Making Local Policy Stronger, which made this point about policy about housing:

On such a critical and contentious issue there is little guidance from the SPPF about where medium density development should be located or how local government should approach the task…State planning policy should progress from general statements to include more specific and detailed targets, provisions and guidelines for such key policies as urban consolidation and higher density residential development, centre development, retail hierarchy and employment generation.³

There appears to be a culture that almost takes pride in the “robustness” of the SPPF, as defined by its ability to absorb major changes in planning policy (such as Melbourne @ 5 Million) without needing fundamental revision. Indeed, it often seems the “real” policies are things that sit outside of the planning scheme: for example, Melbourne 2030 and Melbourne @ 5 Million.  This does not help decision-makers, and also means that the government is not sufficiently held to account by its own declared policy framework.

There is therefore a need for the SPPF to be fundamentally revised. This should involve rewriting of the SPPF to move it away from motherhood statements and references to policies prepared separately, and to instead make it into a meaningful planning policy document. When rewriting Metropolitan Strategy, for example, re-drafting the SPPF should be central to the exercise, not an afterthought.

There is also a need for a kind of policy not really allowed for in the way the SPPF is currently envisaged. Councils waste a great deal of effort duplicating strategic work that has statewide application, preparing policies that cover matters that arise in almost all municipalities: advertising signs, discretionary uses in residential zones, development applications in heritage areas, and so on. These often contain genuinely local provisions, but they also expend a great deal of time outlining broader general principles: advertising signs should not obscure architectural features of buildings; non-residential uses in residential areas are more favourably looked at adjacent to main roads; “mock-heritage” buildings are not a favoured design response in heritage precincts; and so on.

Some of these matters are touched on in particular provisions, but usually in too general a manner. If we consider the current SPPF as essentially a statewide equivalent of a Council’s MSS, I suggest that we need a statewide equivalent of the policy section (Clause 22) of the LPPF. This would contain policies regarding these common policy dilemmas. This would reduce the unnecessary work for Council strategic planners and plug scheme “holes” for Councils that don’t have the resources to prepare policies about such matters. It would also result in more consistent, credible, and better-understood policy by reducing local variation. The emphasis in the LPPF could then be upon truly local considerations and special cases.

The foundations of a much more helpful State policy section already exist. Various branches of the State government produce all sorts of documents that sit outside the scheme: urban design documents such as the guidelines for activity centres, safer design, and higher density residential development, or Heritage Victoria’s Guidelines for Assessing Planning Permit Applications.⁴ These documents are valuable but in practice are under-used and given little weight: they should be boiled down to their essence and placed in all planning schemes. There are also existing local policies that would be of widespread usefulness assistance if adapted as statewide policy: consider the City of Melbourne’s Clause 22.17 – Urban Design Outside the Capital City Zone, for example, which could easily be the basis for a very helpful state-wide urban design policy.

General policies that should be compiled for the use of all Councils that should be compiled from exiting state documents and local policies and included in this envisaged section of the SPPF include:

• Heritage (outlining general principles of heritage design, based on existing local policies, and other documents such as Heritage Victoria’s Guidelines for Assessing Planning Permit Applications)
• Urban Design (as suggested, it could be along the lines of Melbourne’s Clause 22.17 and incorporate material from various State government Urban Design publications, as listed at http://www.dpcd.vic.gov.au/planning/urbandesign/guidelines)
• Discretionary Uses In Residential Zones (many councils have such a policy, and there are many shared elements across such policies)
• Residential Buildings of Four Storeys or Above (the essence of the existing incorporated document should be distilled and put in the scheme)
• Safer Design (if not addressed in the Urban Design policy suggested above)
• Advertising Signs
• Sustainable Building Design

Of course, some of the matters could be included in particular provisions (eg Advertising Signs) or overlays (eg the Heritage Overlay). The best place may depend on the particular topic, and ultimately such a detail is one to be debated by the drafting purists. The important thing is to get the content into planning schemes in a form that will be useful to Councils. (I note that the recently released draft parking controls expand that clause to include detailed design guidelines, and these are a good example of the kind of guidance I refer to.)

It should also be noted that Councils must regularly review their MSS, while there is no need for formal review of the SPPF. There should be formalised review and auditing of the operation and effectiveness of the SPPF in a manner similar to Council’s policy reviews and the Melbourne 2030 audit.

Suggested responses:

Failure to resolve competing policy imperatives at the level of strategic planning

The theory with the VPPs was that they would improve the strategic focus of statutory planning decision-making by making decisions address strategic objectives. This might be said to have occurred.

However, this has frequently been achieved by creating planning controls that simply list various competing objectives and require the decision-maker to resolve issues on a case-by-case basis. A variety of factors – notably the difficulty of revising planning schemes, an unhelpful aversion to prescription, and a lack of resourcing for strategic planning (particularly in rural areas) – have led to a situation in which planning schemes fail to give clear guidance, and instead simply set up a series of site-by-site conflicts. Instead of the scheme controls weighing competing imperatives and giving direction as to the way planners should respond, the scheme becomes a catalogue of competing objectives, which different decision-makers will inevitably weigh differently. This causes considerable regulatory burden, erodes confidence in the planning system, and leads to inconsistent outcomes.

Examples of this general vagueness and the resulting lack of direction include:

• Discretionary height controls that are routinely breached.
• Parking controls that encourage site-by-site parking studies rather than region-wide approaches to parking.
• The Wildfire Management Overlay, which the Bushfire Royal Commission noted “does not provide strong and unequivocal guidance about the relative weight that should be given to bushfire risk when balancing complex and competing objectives.”⁵
• “Blanket” application of zones, such as the Farming Zone, that forfeit the opportunity to meaningfully direct types of uses to particular areas.
• Highly uniform solutions to particular problems: eg the same approach to medium density housing everywhere.

We need to move from a situation where strategic planning is seen as essentially a high level objective setting operation, and rethink the way we undertake strategic planning so that it is what it should be: the codification of spatial solutions to achieve policy objectives.

There are a number of ways to go about this. Firstly there needs to be a cultural shift around how scheme controls are written. Performance-based controls have become almost an article of faith, with the use of more prescriptive standards in local controls seen as something pursued by poor planners at renegade Councils. There needs to be more recognition that prescriptive tools such as mandatory height controls, when properly justified, are of considerable value in providing certainty and achieving consistent outcomes.

There also needs to be greater recognition that true “performance based” controls are not vague. A true performance based control might be something like the following:

A building shall not overshadow more than 40% of the adjacent park at 2pm on 22 September.

Such a control allows flexibility in how the performance outcome is achieved, but is still tangible and measurable. In Victoria, we have tended to understand performance based to mean something much vaguer, like these:

Ensure that development does not adversely affect the significance of heritage places.

Ensure signs do not contribute to excessive visual clutter or visual disorder.

Ensure the social and economic impacts of the location of gaming machines are considered.

Each of these objectives (taken from the purpose of a VPP clause) is accompanied by equally vague decision guidelines. The culture needs to shift to one in which mandatory controls and true performance based controls are the preferred methods of articulating policy, when they can be formulated, with vaguer “objective based” controls such as currently the norm used only as a fall back option.

There also needs to be a move back towards spatial solutions at the level of zones and overlays. This is the lesson learnt – at great cost – from the WMO experience. Simply placing an overlay on bushfire prone areas and then letting a referral authority vet applications actually ducks the task of planning.⁶ Similarly, there is a perpetual call for more discretion in the Farming Zone when what is actually needed is strategic work to direct where the Farming Zone should apply and where other zones (such as the Rural Activity Zone, or possibly an as-yet-unformulated zoning solution) should be used.

Planners should work to identify suitable and unsuitable areas for development at a strategic level, and then create controls that clearly direct (or mandate) those development patterns. This should involve both a thorough audit of existing controls to identify ways to make them more capable of outlining spatial solutions (eg variable density residential controls, more nuanced rural zones), and resourcing to Councils to undertake the strategic work required.

To facilitate a more responsive strategic framework it also needs to be easier to make changes to the scheme. This is ultimately a matter for the review of the Act, and upon which I expanded in my submission to the Modernising Victoria’s Planning Act review (see section 7 of that submission). While possibly beyond the scope of the current review, the point here is that the difficulty of making changes to the scheme currently encourages a risk-averse approach to scheme drafting. We need to be nimbler about the way the scheme responds.⁷

Ultimately the goal of these changes should be to shift resources away from duplication of common policy work and case-by-case considerations at the statutory planning level, with those resources devoted instead to identifying area-wide solutions and implementing them with targeted and responsive scheme controls.

Suggested responses:

• Revise guidance about how controls should be written to provide stronger support for prescriptive and truly performance-based solutions.
• Revise guidelines for amendment preparation to place more focus on resolution of competing policy dilemmas
• Review amendment process to allow for speedier amendment to schemes (see Appendix for more discussion)

Continuing Erosion of Local Policy

There has long been concern in the industry that local policy is frequently disregarded or given insufficient weight, and this led to the Making Local Policy Stronger review. Many of the recommendations of that document were sound: the increased ability to customise planning controls to reflect local policy is consistent in principle with my emphasis above on implementing clearer and more binding spatial solutions.

However, there is a sense in which this approach has worked to entrench the problems with the attitude to local policy. The review actually emphasised various ways in which other areas of schemes – the SPPF, zones, overlays, and particular provisions – would be strengthened, while arguing that the LPPF in most cases could be slimmed down.⁸ This has in fact accelerated the sidelining of local policy as a useful tool in achieving objectives.

For example, activity centre policy is now to be achieved through the preparation of Activity Centre Zones. This is despite the fact that an activity centre may have many different precincts (residential, business, recreational), which might require quite different approaches in terms of both use and development. This has led to cumbersome drafting exercises as these zones then try to designate sub-precincts to communicate differing requirements within the centre. The use of a common zone across the multiple precincts of a centre can only be justified as a communication tool, required to flag the importance of the centre and outline centre-wide objectives. This approach would not be needed if local policy about such centres were given more weight.

Such a situation is in fact ideal for a local policy, since it can outline common use and development principles across a precinct that sits over multiple specialist zones. However, the zone-based solution to such situations has proliferated because of an intuitive understanding that local policies are simply not strong enough to get the job done. If we were truly giving local policy enough weight, why would local policies about Activity Centres not be seen as strong enough to do this job? The need for the ACZ as a signal to developer should be seen as an indicator of the extent to which the LPPF has been sidelined.⁹

Local policy can once again be a useful tool, but this requires a confrontation of the entrenched cultural issues in the profession (notably at the Tribunal) with regards to local policy. Stronger guidance needs to be given on this front by DPCD, and increased flexibility needs to be granted to use local policy to express strong and clear policy guidelines.

Suggested responses:

• Use practice notes and Ministerial Directions to re-affirm the importance of local policy, and to reverse the trend towards devolving local policy to other parts of the scheme.
•  Allow for more prescriptive and specific expressions of policy in the LPPF.
• Use continuing education and professional development throughout the industry to confront the culture of devaluing local policy.

An Inherent Bias Towards Over-regulation

The desire to ensure that permit triggers were kept out of the hands of Councils seems to have been paramount when drafting the VPPS, and nowhere is this more obvious (and more detrimental) than in the structure of the overlays. The “activating” permit trigger clause is placed in the front (State) part of overlays, and all the schedules can do is exempt things back out. This back-to-front structure maintains the polite fiction that the “real” control is in the State-controlled VPP section, but in practice this is just a contrivance.

This causes a number of problems.  Firstly, the controls become circuitously worded and much easier for lay people to misread. The control is needlessly dispersed through two separate clauses and its meaning is distorted by the unfortunate backwards wording used in the schedule to the overlay, where the emphasis is on what doesn’t need a permit.

This isn’t just an issue of clarity, however: the workload ramifications of this structure system-wide are difficult to overstate, as they create an inherent structural bias towards over-regulation. In practice, buildings and works controls default to “on,” catching virtually everything. This has meant that efforts to reduce the burden of the system have focussed on trying to expand the exemption provisions within overlays and Clause 62. Those efforts are welcome, but we will always be playing catch-up until the “permit for everything” bias of the VPPs is reversed.

If schedules actually included the permit-triggering clause, the question of what developments really warrant a permit would inevitably be more front-and-centre when those controls went through the amendment process. At the moment, it’s too easy for the question of what permits will be triggered by a control to recede in importance when new overlays are considered by councils, panels, and the Minister. An “opt-in” permit trigger system would hopefully cause more consideration before new overlays introduced sweeping needs for permits, by forcing more consideration of what does need a permit rather than putting together ad-hoc lists of what doesn’t.

I appreciate that implementing this change would be complex. Presumably it would require a state-wide “flipping” of the controls to meaning-neutral equivalents, with the real benefits following after that as incoming controls were better worded and the old catch-all controls were gradually rolled back. It would be worth the effort, though: the number of meaningless buildings and works permits taken out of the system by such a change would be enormous.

Suggested responses:

Insufficient Emphasis on Empiricism and Best Practice in System Review and Monitoring

In May 2008 the Victorian Auditor general made the following findings about the functioning of DPCD:¹⁰

• Existing arrangements within DPCD do not allow for comprehensive measurement and monitoring of the overall performance of the planning system. DPCD should further develop these arrangements supported by a structured program of stakeholder engagement.
• Performance measurement arrangements have not been developed to assess the impact of recent changes to the legislative and regulatory framework designed to improve the effectiveness and efficiency of statutory processes. These arrangements are required to determine the extent to which such changes are achieving their intended goals.
• There are no performance standards in place for DPCD regions to measure the effectiveness and efficiency of their advisory and statutory support services to councils.
• Timeliness targets for the authorisation and assessment of planning scheme amendments are in place however the calculation of actual performance does not measure the total elapsed time to make a decision.
• DPCD, in conjunction with stakeholders, should assume the lead role in developing a more comprehensive framework for measuring the performance of the state’s planning system. The framework should include key performance indicators, targets and reporting arrangements for assessing:
  • the achievement of planning outcomes at the local and whole-of-state levels
  • the effectiveness and efficiency of key planning permit and planning scheme amendment processes, including the performance of councils and DPCD in the administration of those processes
  • the administrative impact on councils arising from their compliance with statutory processes and the extent to which implemented reforms have achieved their objectives and/or reduced such impacts.
• DPCD should establish an ongoing program for obtaining stakeholder feedback to support and complement the operation of the performance measurement framework.
• DPCD should review and revise the existing performance targets for the planning scheme amendment process so that they accurately reflect the elapsed time for decisions to be made on authorisations and approvals.

These were sound and well-justified recommendations, but appear to have been largely forgotten since. The Department continues to run a detailed and comprehensive monitoring process for the performance of local government in the form of PPARs data, but an equivalent level of basic accountability and transparency is not applied to the way in which DPCD assesses its own performance.

To some extent this is a management issue outside the terms of the current review. However, in the context of VPP review and monitoring, it is considered that the point needs to be made that there is insufficient regard to empiricism or best practice when monitoring and reviewing the performance of the system.

For example, the workload and regulatory burden implications of the VPP system as a whole, or individual VPP clauses, are not measured in a coordinated and transparent manner. This is despite third party research that has been suggestive that the shift to the VPPs had been accompanied by increases in permit numbers, staff turnover, and various other measures of administrative burden.¹¹

Furthermore, system reviews that do occur are treated with excessive secrecy. For example, the Advisory Committee’s review of car parking controls was not released until August 2011 despite being completed in January 2008. Such documents should be released publicly when complete, rather than their release being curtailed until the Department’s response is ready.

There is also considered to be insufficient emphasis on empiricism or best practice in such reviews. For example, there is a striking lack of data or research in the parking review about matters such as:

• The numbers of permits generated by the current controls
• The percentage of waivers currently issued (of interest as a measure of the current control’s efficiency and effectiveness)
• Common traits of applications where the permit is issued (of interest as a potential guide to shaping permit exemptions)
• Research about best practice models and alternate models (for example there is no detailed consideration of the substantial research questioning the basis for minimum parking controls as a policy measure)¹²

I should note that the responsibility for these omissions is not necessarily with the Advisory Committee: they arise from the lack of availability of data, the extent of resources provided to the Advisory Committee, and the nature of the terms of reference. These matters are within the hands of the DPCD, and I would question whether the Department has the independence, resources, and skills it needs to undertake transparent and de-politicised system monitoring and review.

As another example, consider the recent amendment VC82, setting buffer distances for windfarms. Such an amendment should have been supported by publicly available supporting documentation into what areas windfarms would be viable, and what the expected impacts on windfarm numbers would be. In that case the key strategic justification in the explanatory report was a party policy position. While political imperatives will always to some extent drive outcomes, the transparency of this process would be improved by tighter standards regarding reporting and measuring the impacts of amendments.

There would also be benefits to ensuring that there was a stronger culture of outside review. Key system reviews have in most cases been undertaken by senior figures in the Victorian planning industry: these figures are very often key architects or gatekeepers in the system they are reviewing. While there are obvious logistical problems with involving people from interstate in such reviews, it would still be valuable to explore options for increasing the input of outside experts.

Suggested responses:

Conclusion

I have focussed in this submission on some key structural and systemic issues. I have not focussed on detailed system changes. However, I have previously contributed to an article for Planning News that did focus more on such “nuts and bolt” changes. That article may also be of assistance to the current review.¹³

I appreciate the opportunity to submit to this review and hope that the Committee embraces this opportunity to make positive change to the Victorian planning system.

Images by “mugley,” “spitfirelas,” and “tashland,” and used under Creative Commons licences. Click each image for details.

Notes

1. Department of Planning and Community Development, “Making Local Policy Stronger – Report of the Ministerial Working Group on Local Planning Policy: June 2007” (Victorian Government, June 2007), 1.

2. Timothy Westcott, Gilda di Vincenzo, and Stephen Rowley, “The Trickledown Effect,” Planning News 36, no. 1 (February 2010): 4.

3 Department of Planning and Community Development, “Making Local Policy Stronger,” 5.

4. Heritage Victoria, “The Heritage Overlay: Guidelines for Assessing Planning Permit Applications” (Department of Sustainability & Environment, February 2007).

5. Bernard Teague, Ronald McLeod, and Susan Pascoe, “Chapter 6: Planning and Building,” in 2009 Victorian Bushfires Royal Commission: Volume II – Fire Preparation, Response and Recovery (Victorian Government Printer, 2010), 236.

6. We expanded on this point somewhat in Planning News: see Gilda Di Vincenzo and Timothy Westcott, “The Harshest Lesson,” Planning News 36, no. 8 (September 2010): 4. Online here.

7. See my previous expression of this idea at Stephen Rowley, Gilda di Vincenzo, and Timothy Westcott, “Driving with the Handbrake On,” Planning News 35, no. 2 (March 2009): 4. Online here.

8. Timothy Westcott, Gilda Di Vincenzo, and Stephen Rowley, “Making Local Policy Stronger – Really?,” Planning News 33, no. 10 (November 2007): 4.

9. For another example, consider which would be given more weight at a Tribunal hearing: a preferred building height expressed as an objective in a DDO, or a preferred building height expressed in a local policy. I would suggest VCAT would give far more weight to the former. But why, exactly?

10. Victorian Auditor-General, “Victoria’s Planning Framework for Land Use and Development” (Victorian Government Printer, May 2008), 35–36.

11. Michael Buxton, Robin Goodman, and Trevor Budge, “Planning and Deregulation: The Failure of the New Victorian Planning System,” Australian Planner 42, no. 2 (2005): 52-58.

12. Notably Donald C. Shoup, The High Cost of Free Parking (Chicago & Washington: Planners Press, 2005); I expand on this point here.

13. Rowley, Westcott, and di Vincenzo, “Building a Better System.” Online here.