Frustrated with the rezoning process? So are we! The time is ripe for radical changes to the planning scheme amendment (PSA) process. The State government has announced a review of the Planning and Environment Act 1987 – including the provisions regarding amendments to planning schemes.

So what changes to the system might make a difference?

There are many frustrations with the PSA process. Proponents, Councils, government departments and the community often all get caught up in the tortuous tentacles of a PSA. From authorisation to exhibition; submissions to panel hearings; adoption to gazettal. There are more twists and turns than with Gary Ablett Junior.

Without labouring every deficiency in the process, here is a summary of four key areas of concern – followed by a few ideas for fixing them.

1           Delays and Uncertainty
The proponent of an amendment (where they are not the planning authority) needs the support of the planning authority (usually the Council). This enables the Council to request ‘authorisation’ from the Minister for Planning to prepare the amendment.

Just gaining the strategic support of the planning authority to consider the amendment can take months – sometimes years! If the Council does not even want to entertain the possibility of the amendment then the proponent has no option to appeal that view. Unless the proponent can convince the Minister for Planning to deal with the amendment directly then the proposal has no hope of even being exhibited.

A Council may decide to conditionally support an amendment – sometimes with onerous or unreasonable strings attached. The requirement of Council to enter into a Section 173 Agreement dealing with development contributions is often a classic tactic aimed at extracting as much as possible from a proponent at a point in the process where the Council knows it clearly has the upper hand. The lack of an appeal right puts the proponent of an amendment at a distinct disadvantage. They can be effectively held to ‘ransom’.

A Council also has the ability to abandon an amendment at any time in the process – even if a panel recommends in support of a PSA. This creates enormous uncertainty and is unfair to a proponent who may have invested significant time and resources in preparing the amendment, negotiating with stakeholders, presenting at panel hearings and so on.

Whilst not all Councils create major problems or delays, we detect a growing trend that is cause for concern.

2           Authorisation is a Waste of Time
The ‘authorisation’ of a PSA was purportedly intended to eliminate those amendments that went all the way through the system only to fall over at the very end because the proposal was inconsistent with State planning policy. This was a nice idea in theory however, in reality few PSA were actually contrary to State planning policy.

The authorisation process has captured hundreds of amendments therefore, for which authorisation is not necessary. Moreover, authorisation has morphed into an ever increasing detailed assessment of the amendment – often to be repeated at the other end of the process prior to approval. What was meant to be a ‘quick’ two week review has become several months of protracted interdepartmental hand passing. For what value?

3           Consideration of Irrelevant Submissions
Anyone can make a submission to a PSA. Sometimes irrelevant or vexatious submissions can significantly delay the planning process. Sometimes submitters raise matters that would normally be dealt with in the detailed design of a permit application following the PSA. The current system requires the planning authority to consider all submissions and, where the amendment is not modified in accordance with the submission, to refer them to an independent panel for review.

It would seem appropriate that some form of initial sorting of the submissions would help to clarify and define the scope of Panel hearings. This could reduce the hearing time needed for a panel – and in some cases could eliminate the need for a panel altogether.

4           Planning Authority can Ignore Panel Reports
When an independent panel completes its report it refers it back to the planning authority. Its recommendations are not binding on the planning authority. In many instances, the PSA is adopted with some but not all of the panel recommendations. The community and the proponent are often confused by this response – particularly when the planning authority has been one of the key players during the hearing. The planning authority is both a participant in the panel and then a decision maker regarding its recommendations. This potentially undermines the purpose and credibility of the independent panel process and is counter to transparent decision making.

1           Minister for Planning to Co-ordinate all PSA

It is almost back to the future but the preparation of all PSA through the Minister for Planning (DPCD) would:

• eliminate the need for a separate authorisation process;
• ensure greater consistency of the use of the Victoria Planning Provisions when preparing a PSA;
• eliminate the local politics and ‘ransom’;
• provide potential for greater accountability for timelines for processing PSAs.

The preparation of PSA through the Minister for Planning would also help to ensure greater integration of metropolitan planning policy in Melbourne. Perhaps a metropolitan planning authority could have the responsibility for preparing all PSA? The idea of a metropolitan planning authority has merit on a number of fronts – but that is a topic for another issue of the coll-e-bulletin.

Where amendments were requested by third parties, Councils would be consulted during the exhibition phase and they would need to defend their support or concerns at an independent panel hearing.

The Minister could have a prescribed time to exhibit a proposed PSA or refuse to exhibit a PSA.

2           Directions Hearing to Consider Submissions
Eliminate irrelevant or vexatious submissions at a directions hearing prior to the panel hearing. The directions hearing could also clarify the pertinent issues to be addressed at the panel hearing – rather than every party essentially repeating their original submission. This would help streamline the hearing process and be of more value to the panel.

3           Panel Reports to Minister
Another advantage of the Minister as the planning authority for all PSA is that the panel reports go directly to the Minister (rather than effectively via Council as is presently the case). This eliminates the second bite at the cherry.
Where the Minister decides to reject or vary recommendations of a panel report he or she should be compelled to provide written reasons for the variations.

4           Abandoning Amendments
The Minister should only be able to abandon a PSA at the request of the proponent. This would eliminate local political interference and ensure a transparent process for all.

We know that implementing this 4-point plan will not solve all the problems of the PSA process – but it could be a useful start. Let us know what you think.