IN the second of this four part series, Emma Riley, State President of the Planning Institute of Australia, Tasmanian Division further examines whether the planning system really is at a crisis point, in light of recent criticism and whether we need to review and update the system or undertake planning reform.
Part 2: Decision making, time delays and appropriate public input
PLANNING and planning decisions often come up in the media as a matter of public interest. Unfortunately, some published opinions that seek to scapegoat the land use planning system are not founded on a proper understanding of why we have a planning system, how it works or how effective it is in the great majority of cases.
Most people never knowingly come into contact with the the planning system. Throughout Tasmania, the planning system is quietly humming away in the background, protecting residential amenity from noise,nuisance and hazards, establishing a level playing field for commercial and agricultural activities, creating pleasant places for recreation and often protecting the environment from exploitation. It is against those positive benefits of the planning system that the relatively few examples of delays or adverse outcomes need to be weighed.
Let’s consider some basic facts. Each year in Tasmania, Council’s around the State process somewhere between 9,000 and 10,000 permit applications . Our State legislation (the Land Use Planning and Approvals Act 1993 or LUPAA) requires Council to make a decision on a permit application within 42 days. If a Council fails to do so within that time, the application is deemed to be approved. The applicant must then apply to the Resource Management and Planning Appeal Tribunal for appropriate conditions of approval and costs may be awarded against the Council. Unlike mainland States where applications outside of the statutory timeframe are often deemed refusals, the Tasmanian approach provides a strong incentive for Councils to deal promptly with permit applications.
under the current system these permit applications are often divided into two categories, permitted or discretionary, A permitted application is one for which Council must grant a permit and is one which complies with the standards under the relevant planning scheme.A discretionary application is one that Council may refuse or permit (i.e. where a discretionary status is applied to a use that may not be acceptable in all locations within a zone), or may not proceed unless Council waives, relaxes or modifies a requirement of a planning scheme (i.e. relaxation of a development standard such as maximum height).
There are no third party appeal rights on permitted permit applications.
An applicant often has the choice of whether to comply with the planning scheme and receive their approval in a straight forward and quick process with no third party appeal rights, or ask for Council’s discretion. In the latter instance the legislation requires that Council publicly notify the application by placing an advertisement in the paper, notifying the neighbours and placing a site notice. As the application does not comply with the quantitative standard or general strategy of the planning scheme, the reasons for the notification are to afford natural justice to individuals or communities as the approval of such applications may have an adverse affect on neighbouring landowners, the local environment or the wider community.. This approach is required under the current structure of the RMPS, which has an overarching objective to encourage public participation within the land use planning process.
In terms of assessment times, the average time in Tasmanian Councils for a decision is approximately 20 days for a permitted application and 34 days for a discretionary application. These are the second fastest approval times in the nation, only trailing the Northern Territory. Compare this to say NSW where applications for a new home has an average assessment time of 78 days, or South Australia where the average assessment time is 120 days.
Third party appeals only arise when there is a discretionary application. While there are no statistics available on the number of third party appeals each year, let’s consider that of the 9,000 to 10,000 applications that are assessed each year, approximately 4% to 5% of the decisions are appealed to the Tribunal. Of those 400-500 appeals, over 60% are settled through mediation without expensive and time consuming legal battles.
The remaining cases (approximately 1% of all development applications) that go to a fully contested hearing constitute the tiny minority that is reported in the media and thus generate the unwarranted perception that ‘planning is in a mess and must be reformed.’ Furthermore, the existing legislation allows the Tribunal to apply a ’frivolous and vexatious’ test, which, with the costs implications, generally avoids any inappropriate appeals or ‘time wasting’ by third parties. It can be argued that the effectiveness of this is demonstrated in the Tribunal’s recent decision on costs regarding the subdivision by Mr Cousins at Crescent Bay.
The removal of third party appeals to RMPAT from the RMPS should only be approached with extreme caution. While it has sometimes been expressed by some in the business community that we are seeing an unnecessary number of appeals in the State, these comments need to be considered against the hard facts stated above, and the legislative requirement to facilitate public participation in the RMPS.
If the predominant concern is with the limited resourcing and subsequent delays at the Tribunal, then more funds and resources should be allocated. Proper land use planning and public participation in accordance with the objectives of the RMPS should not be compromised because of a resourcing problem.
Some planning schemes are moving toward a ‘performance based’ approach. These schemes often rely on a subjective decision making process, and are sometimes quite ambiguous, in these cases affected parties (particularly in regards to residential development) must have rights of appeal to counter the inherent subjectivity, and ensure transparency in the decision making process.
In many cases, it is actually the proponent that initiates an appeal against a Council decision. This may be against the refusal to grant a permit, or on permitted applications, against the inclusion of particular conditions on a permit. Obviously, any limitations on third party appeals would not address these types of appeals.
Turning to the question of perceived delays, it is acknowledged that delays do sometimes occur within a Council’s assessment process, usually for good reason. Among the common causes are:
• When applicants do not hold ‘pre-lodgement’ discussions with Council planners and consequently not submitting adequate information to enable their application be assessed under the planning scheme.
• When applicants do not hold recognise that the site is located in a ‘special area’ (heritage or threatened species) or one where there is a potential risk to life or property (i.e. bushfire or flood prone areas).
• When applicants do not hold appreciate the lead time required to prepare a planning report to be placed on the agenda of the Council’s fortnightly or monthly meeting cycle (often where Council has not delegated discretionary applications).
• When advice or referral to State agencies is required and this advice is not provided in a timely manner.
It is acknowledged that delays can occur due to the general shortage of qualified planners or where Council’s are reluctant to delegate decision-making on straight-forward matters to professional staff. However these are not sufficient reasons to compromise the planning system that is designed to promote equitable outcomes for the whole community.
For example, with the current separation of subdivision and dwelling approvals, if we were to allow (as has been suggested a number of months ago by the HIA) development to occur on new subdivisions without planning assessment of each individual house, then there is no method to ensure an appropriate standard of amenity and equity for all lot owners. Whilst you may get the house you wanted on your land, a neighbour could build a house which overlooks and shades your backyard, your living room and other living spaces. Such an outcome is likely to be considered unreasonable by yourself.
The value of the planning approval process is that it seeks to prevent such events, and provide a reasonable level of amenity to all residents.
While it is important that we strive for an efficient permit assessment processes within the RMPS, the Institute strongly believes that too much time and resourcing is focused on perceived problems with permit assessment end of the planning system. However this end of the planning system cannot operate efficiently in the current state and regional policy vacuum within which planning schemes currently exist. This ‘policy vacuum’ is largely responsible for the differences and inconsistencies in planning schemes between Councils that is often ridiculed by some in the land development industry.
In the broader national context, the day-to-day assessment of permit applications within the RMPS is relatively straight forward and efficient, and should be of our least concerns with the planning system at the present time.
Part 3 examines the Resource Planning and Development Commission and planning policy while Part 4 examines specific examples of criticisms and provides an overview of how we should seek to improve planning outcomes in Tasmania.
