Is the Planning System in Crisis? (Part 3)

IN the third 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 3: Resource Planning and Development Commission

IN RECENT years, the Resource Planning and Development Commission (the Commission) has been a regular topic for media comment and public criticism. This includes the Tamar Valley Pulp Mill, the Legislative Council’s Select Committee of Inquiry into Planning Scheme and the Inquiry into the establishment of marine protected areas within the Bruny Bioregion. Most recently the structure of the Commission forms part of the terms of reference for the current review into the planning system.

The Commission was established in 1997 as an independent statutory authority under the Resource Management and Planning System (RMPS). Its primary functions are:

• to assess and approve local government planning schemes and planning scheme amendments;
• to assess projects of State Significance;
• to assess Draft State Policies;
• to prepare the Tasmanian State of the Environment report;
• to conduct inquiries into the use of public land;
• to review the representations and the report of the Secretary of the Department of Primary Industries and Water relating to draft water management plans; and
• to consider the draft development plan and any representations, statements and recommendations contained in a report of the Sullivans Cove Waterfront Authority.

These roles show the Commission generally has a ‘reactive role’, the Commission is not responsible, nor has any authority, for the formulation of either state or local government policy. Rather the Commission is the authority charged with the assessment of land use policy such as State Policies and Planning Directives.

As an independent authority he Commission does not fall directly ‘within’ a State Government agency and is therefore not directly answerable to the Minister of the day or the Executive Government. Rather, the Commission reports to Parliament.

The Commission is often confused with the Resource Management and Planning Appeal Tribunal. There are some similarities between the two authorities: both are independent statutory authorities, both have established expertise in land use planning; the decision of both are only appealable on law (not merit) to the Supreme Court; and both have an acronym starting with ‘R’. However that is where the similarities end.

The terms of reference for the current Review refer to the ‘viability of amalgamating the RPDC and RMPAT’. This is not a new concept and is one that has been circulating for some time. However such an idea is flawed and overlooks the fundamental differences between the two authorities and the much wider functions of the Commission beyond those associated with planning schemes and amendments.

There has certainly been some confusion within the community over the different functions of the two bodies and their subsequent processes under the RMPS. It is even questionable whether there is a proper understanding within Government given the fundamental errors concerning the Commission’s roles expressed by the 2007 Legislative Council Select Committee Inquiry into Planning Schemes.

The Commission took the somewhat unusual action of publishing a response to this Select Committee Enquiry in order to address what it saw as a failing by the Committee ‘to adequately comprehend the functions and roles of the Commission, and the Tasmanian Resource Management and Planning System more generally.’

As summarised in that response “in basic terms the Commission assesses planning schemes; the Tribunal assessing proposals against planning schemes. The Commission’s role is by necessity much broader and disputes over land use policy and implementation are value laden and subject to interpretation.”

While amalgamation of the two authorities may provide some minimal savings in public administration, it is unlikely to be in the public’s interest or the interests of good planning. These authorities clearly have different matters to consider that require different assessment and decision making processes.

The Commission is responsible for ensuring that the land use strategy content of the RMPS is delivered through relevant regulation such as planning schemes. The Tribunal is responsible for the fine detail of interpretation and rights of appeal. No other state in Australia combines these functions and all have separate courts/tribunal to provide a decision making review function. Fundamentally, the RPDC is not a review or appeal authority; rather, it is responsible for the translation of land use policy (prepared by State or Local government) into statutory provisions (planning schemes).

While there are certainly some delays in both processes, a more professional or objective approach to planning matters by local government, increased resources, and a minor review of procedures by both authorities is far more likely to improve any procedural flaws than any ad hoc attempts of amalgamation.

This also applies to the possibility that the government’s land use policy arm, ostensibly the State Planning Adviser and the Land Use Planning Branch (Department of Justice) may be readily housed within the Commission to provide a ‘quick fix’ to the persistent problem of not having a clear government ‘face of planning’.

This is not to permanently rule out any unification of State planning instrumentalities. As indicated in the Institute’s submission to the current Review, there may be merit in exploring the idea of disbanding the Land Use Planning Branch and broadening the Commission into a statutory planning authority responsible for both planning policy and implementation. Nor does it rule out some centralisation of planning functions in which independence of statutory functions and the planning policy branch is maintained in their current format under an overall banner.

A single entity, such as the structure of the Western Australian Planning Commission, may in the long run be appropriate given the limited resources in the State. Such an approach may ensure that all areas of government responsible for planning policy in one respect or another (such as housing, health, infrastructure and agricultural production), are on the same page through their membership of such a Commission. To be effective such an authority should not be within an agency, but given the ability and authority to champion and deliver substantive land use planning.

However, such a model raises the critical issue of how a single authority can be both a policy advocate and decision maker. And this is no minor matter.

Under the structure of the RMPS, the role of the Commission is to ensure that decision making functions are carried out by an independent body, free of political influence from either the local or state level. This is reflected in the clear separation between the ‘policy makers’ (State and Local government) and the ‘decision makers’ (the Commission and the Tribunal).

To combine these policy making and decision making functions into a single entity involves a fundamental change to the RMPS as it is built around the separation of these powers. Yes, you can combine the two aspects (such as the WA Planning Commission), but you then need to accept that there is no separation of powers.

This is a fundamental shift and it cannot just be ‘bolted on’ to the RMPS. It requires an entire rebuild of the Tasmanian planning system, and while within the profession we may not have a problem with a benevolent planning dictatorship, you cannot then pretend it is either democratic or independent.

Moreover is this what the broader community in Tasmania wants? And will it achieve improved land use planning in the State?

Contemporary debates about the quality of governance in Tasmania suggest the first answer is no. The handling of the Pulp Mill by the Lennon Government has compromised any faith in the State’s handling of planning matters, and the notion of a check or balance on political decisions seems even more necessary in light of these events.

Equally, it is improbable that dissolving the Land Use Planning Branch into the Commission will achieve anything but buck passing. Currently, one of the biggest constraints upon the Commission’s role is the lack of State leadership and policy and the area of land use planning. Combining the roles of the Land Use Planning Branch and the Commission does not automatically mean such leadership will materialise from its current black hole.

If the ‘policy makers’ (the Land Use Planning Branch) were simply to be appended to the Commission, there remains no authority for the Commission, under its Act of the Land Use Planning and Approvals Act, to prepare land use policy.
Such a quick fix only provides for minor cost savings to government in public administration, but why should the government be saving more money on planning when as outlined in Part 1 of this series, it puts such little resources into planning?

Ultimately the RMPS is founded on the State documenting its interests (through the various agencies) in a complete suite of State Policies that together establish how sustainable development is to be achieved, and describe how the State government wants land use and development to proceed. Independent statutory authorities, and local councils, then use those policies to assess planning matters that over time deliver the ‘big picture’ that is described in those State Policies.

Combining the two functions of policy maker and decision maker will not address the lack of policy. The State government has not provided the appropriate resources through any type of central planning agency to promote a better community understanding of land use planning. Only significantly more resources into the Land Use Planning Branch with an increased commitment at the political level of State government to raise the profile of planning will achieve this.

Those arguments that suggest that in a State the size of Tasmania ‘we don’t need this’ or ‘we don’t need that’ (including a full a ‘Department of Planning’), and that our public sector is already too large, overlook the basic fact that regardless of population size, all States have numerous governance requirements that must be delivered. Just because we are a small State, does not mean we should not have a public health system, adequate infrastructure or proper land use planing. In fact, our size and subsequent resource constraints exacerbate the need for strategic planning. This may even be the case in the Northern Territory who invests a significantly higher amount per capita in strategic land use planning than either NSW or Victoria.

Regardless of whether it is a Department of Planning or not, Tasmania needs a much higher government profile for planning than what currently exists: half a dozen officers buried within a line agency (Department of Justice). Meanwhile the ‘super agencies’ such as the Department of Infrastructure, Energy and Resources continue to make the powerful infrastructure and service delivery decisions that influence, and in some instances compromise, proper planning outcomes.

While there is a strong argument for a single, pro-active land use planning authority, it is but one solution to the current absence of any proper strategic planning by the State government and there are many other possibilities for centralisation functions and providing a ‘face to planning’ which will not compromise the current separation of powers.

Emma Riley

Part 4 examines specific examples of criticisms and provides an overview of how we should seek to improve planning outcomes in Tasmania.