Review of the Town Planning Regulations 1967 and the Model Scheme Text Discussion Paper (May 2009)

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1 Our Ref: PIA Policy Model Scheme Text Your Ref: Submission: Review of TP Regulations and MST 29 July 2009 Executive Director Strategic Policy and Management Department of Planning and Infrastructure Albert Facey House 469 Wellington Street PERTH WA 6000 PO Box 625 South Perth WA 6951 Phone: Fax: wa@planning.org.au A.B.N Dear Sir / Madam Review of the Town Planning Regulations 1967 and the Model Scheme Text Discussion Paper (May 2009) As the peak body for planning professionals in Australia, the Planning Institute of Australia (Western Australian Division) (PIA) commends the Department of Planning and Infrastructure (Department) in undertaking the preparation of Review of the Town Planning Regulations 1967 and the Model Scheme Text Discussion Paper (May 2009) and Additional Discussion Paper. Background Development in Western Australia has, until recently, been governed by the Town Planning and Development Act 1928 and Town Planning Regulations (TP Regulations) gazetted on 28 November Regulation 11 of the TP Regulations requires Town Planning Schemes to generally conform to a Model Scheme Text (MST) contained within the regulations. The MST was contained within the TP Regulations until they were removed in 1986, then in 1999 they were reinserted by way of Regulation 11 and 27. In 2005 the Town Planning and Development Act 1928 was replaced by the Planning and Development Act 2005 (P&D 2005) and the ability for the Minister to make regulations in relation to planning provisions were replicated in Section 256 of the P&D Act The ability to make regulations has been expanded to include regional planning schemes within the P&D Act The State has identified a need to review the 1967 regulations in light of the new P&D Act 2005 and ensure that the regulations reflect the most recent changes. Recently the Government and Minister for Planning have made improvements to the planning system a matter of high priority. At the national level the Commonwealth Government has made planning reform and infrastructure development a national priority. The Director General of the Department of Planning (the Department) has indicated that other states have taken the lead in planning reform and warns that Western Australian cannot be complacent if it wants to remain an attractive place for residential and business

2 investment. The strategic priorities of the government have been outlined in the Building a Better Planning System consultation paper. The paper sets out a broad agenda for planning reform and improvement. This reform agenda is evidenced by the large number of consultation papers being released by the Department of Planning and Infrastructure over the last few months. Part of this reform is the review of the TP Regulations. The Department of Planning has identified a number of deficiencies in the current system: The implementation of policy change is entirely dependent on individual town planning schemes progressing through a review process; Further amendments to the MST are not easily incorporated into local government schemes without an amendment; Replication of standard State provisions within each scheme can be costly due to advertising and administrative requirements associated with scheme amendments Local governments have varied the MST and some of these variations have been identified as useful to include in the standard version of the MST. PIA is supportive of the MST and TP Regulations review. Standardisation of provisions across the State will result in a more efficient and effective planning system. This proposed standardisation can only be beneficial to those administering the planning system and those proposing development and land use controlled by the planning system. It also has the potential to provide a greater level of clarity for landowners and their land use and development rights. It is expected that the standardisation of zones and operative sections of the scheme will not reduce the autonomy of the local authority to guide land use and development at a local level. It will simply provide an opportunity to focus on local matters it will reduce the allocation of local resources to State matters. While there are many elements of this review that are supported, PIA have identified that there are a number of areas that are not comprehensively addressed within this review. Regional Planning One aspect of planning that does not appear to be comprehensively addressed is regional planning. It is the provision and coordination of infrastructure that traverses a number of local authorities that could be more appropriately coordinated through a stronger focus on regional planning. The coordination of state government authorities and the provision of their services could be facilitated through stronger regional planning mechanisms. Where regional plans exist there should be consistency of zoning as provided for within the GSP Regulations. Transitional Provisions The transitional provisions that are to be introduced in early January / February 2010 will be critical to the success of the uptake of the new system. It is important that local authorities are provided with the assistance and support to ensure that appropriate local planning policies are adopted prior to that period. With the local government reform process taking up many of the local authority s time and resources it will be important that suitable time is provided for a satisfactory transition period. Confusion at a local level about the legislative framework does not support the implementation of an effective planning process. Deemed to comply provisions PIA is supportive of the introduction of deemed to comply or exemptions from planning approval provisions. In an attempt to focus efforts on larger more strategic planning matters rather than low risk, small scale development PIA has supported a risk-based approach to planning. In recent times the planning system has not effectively kept pace with development pressure with significant delays in assessments. It is acknowledged that a key area of reform

3 in other jurisdictions is the devolution of planning decisions and use of private certifiers. There is merit in the proposed deemed to comply measures proposed in the discussion paper. Environmental Legislation The environment and links to environmental legislation has not been comprehensively addressed in this review. There is significant overlap and duplication between the Environmental Protection Act 1986 and the Planning and Development Act It is a constant cause of confusion amongst planners. There has been little comment on introducing any environmental provisions in the MST. PIA has provided some detailed comment in relation to integrating environmental considerations into the MST at Appendix A. Refer to Appendix A Integrating environmental considerations into planning legislation. Heritage In relation to the heritage protection it is expected that the right of review would only be available to those places listed after the regulations come into effect next year. Structure Plans The proposed reduction of assessment time and nearly immediate advertising of local structure plans has the potential to inappropriately raise the expectations of landowners. Where a local structure plan is proposed for an area that is within the control of a limited number of landowners the expectations of those landowners is relatively easy to manage. Often all landowners are aware of the preparation of the local structure plan and have taken part in its preparation. This is not always the case. Where there is fragmented land ownership there is a need to more carefully consider land use planning in association with a variety of landowner expectations. Where a local structure plan has been proposed over a number of properties, without the input of those landowners it is a different scenario. It can be difficult for a local authority to allocate suitable resources to field questions relating to development potential that is proposed within a local structure plan. It is particularly difficult to response to land owner enquiries where there are critical issues within the proposal that have not been suitably addressed. By requiring the local authority to move to immediately to advertising as proposed there is significant risk to the local authority that the proposed structure plan will not be suitable. The advertising of a plan raises the development expectations of a community. Where those development expectations are not suitably managed and the development rights of landowners are not communicated the local authority could be placed in an untenable situation. Notwithstanding the above comments there should be a suitable amount of time identified in the GSP Regulations for a local authority to assess a proposed local structure plan and provides guidance to the proponent. Third party appeal rights The review does not explore the concept of a third party appeal right that is standard practice in other jurisdictions. Model Scheme Text As with all town planning policies, processes and schemes, the MST and GSP Regulations need to be simple and easy to apply. Schemes should be short and concise and easily understood by the public. Resourcing

4 It is critical that the Department continues to resource this process to achieve the proposed outcomes. There is also a need to identify time frames and appropriate reporting mechanisms to inform stakeholders of the Department s progress, and evidence the progress. Significant review It is noted that the current review is not a radical change to the existing land use and development controls within the State. In general the existing land use provisions will prevail. Those provisions are based on legislation drafted in 1999 and 1963 and therefore there is limited capacity to be responsive to current industry standards. The changes will basically be a change to the structure of documentation which may result in some time and resourcing efficiencies, it is not a significant change to planning legislation. This review can be an opportunity to explore a significant review of the current system. The TP regulations are still largely based on a zoning system. The review has not explored alternative mechanisms to control land use and development such as, but not limited to form based codes. Delegation of decision making It appears there has been limited consideration in reviewing the delegations of the WAPC for matters such as subdivision. If the WAPC was to adopt the risk-based approach to planning approval there may be capacity for the local government to determine subdivision that is in accordance with an adopted local structure plan. This review can be an opportunity for the Department to restructure the planning system to reduce duplication of assessment. Review of local planning policy While the GSP Regulations will ensure that the state level planning controls are regularly updated a more comprehensive review process should be in place for state government and local planning provisions. Just as local government is required to review delegations on a yearly basis a similar regime of review should be promoted for local planning policy. This may result in the reduced proliferation of local planning policy that can be outdated and contradictory. There should be greater consistency of state and local planning policy to facilitate effective implementation. Should you have any queries or require clarification on any matters please do not hesitate to contact the undersigned on Yours sincerely Mat Selby President PIA WA - Planning Institute of Australia Western Australia Encs. Appendix A Detailed comments relating to proposed modifications.

5 Appendix A Review of the Town Planning Regulations 1967 and the MST Discussion Paper Section 4.2 Scheme content General Scheme Provisions Regulations (GSP Regulations) The development of consistent state planning provisions across the state through GSP Regulations is supported. In addition to these provisions the structure of the local schemes should be standardised. For example all car parking provisions to be contained in the same clause within all schemes. This provides consistency but does not remove the ability for the local authority to determine suitable car parking rates across different land uses within there area of responsibility. Recommendation 1: The standardising of the structure of a local planning scheme be considered to provide an easy reference system across all local authorities. The interrelation between GSP Regulations and the significant number of State Planning Policies, Planning Bulletins, and other policy documents should also be considered. The guidelines that are to be considered by planners are highly dispersed and thus affect the capacity of planners to understand, consider and apply them. A centralised system that includes important non-discretionary policy statements within state scheme provisions is recommended, with the number of State Planning Policies and Planning Bulletins revised to be reduced to more manageable levels. There are often significant issues relating to environmental based State Planning Policies and Planning Bulletins, the objectives of which tend to be lost if not included in schemes or statutory policies frequently referred to. Recommendation 2: That the GSP Regulations consider integrating key non-discretionary policy statements currently provided for within State Planning Policies and Planning Bulletins. Section 5.1 Operative part 1: preliminary More and more local authorities are integrating environmental and sustainable policies into their planning provisions. The inclusion of an extra scheme purpose to provide for the sustainable use and development of land is a beneficial acknowledgement of the need for planning schemes to provide mechanisms for environmental protection in the context of land use and development. It would also reflect was is occurring within the local authorities. Greater guidance could be provided within the GSP regulations and MST to facilitate an achievable practical outcome. Whilst the WA planning system provides for a number of mechanisms to specifically identify and conserve environmental assets, guidance for local governments to utilise such mechanisms for environmental planning purposes is lacking. Further detail, with particular regard to zone and special control area provisions, within the GSP Regulations and MST may better enable the proposed purpose above to be achieved through implementation of planning schemes. Whilst the ability of the planning system to facilitate innovation through discretionary application of planning policy should be retained, there is potential for the GSP Regulations and MST to provide greater guidance for protection of environmental assets through standardised or example zone and special control area provisions, which can then be locally refined and applied as appropriate by local governments. Recommendation 3: That more robust guidance be provided within the GSP Regulations and MST to develop appropriate mechanisms, including standardised or example zone and special control area provisions, to protect and manage environmental matters.

6 Operative part 3: Reserves The current application of regional and local reserves under the MST does not differentiate effectively between the purposes of such reserves, be it for regional active use or conservation value. If the initial purpose of a reserve vesting is not formalized, particularly in the case of conservation areas in local reserves, then there is a possibility that subsequent use or development inconsistent with that purpose may occur in the future. The inclusion of additional reserve types within the MST, specific to the use of the reserve, is recommended to address this. Examples may include: Public use Public recreation Public conservation and passive recreation Public resource Recommendation 4: That WAPC develop additional reserve types within the MST to more effectively formalise the purpose of their reservation. Operative part 4: zones Neither the MST nor the Planning Schemes Manual provides any guidance for development of zones or zone objectives that address environmental protection or management. In those local governments, particularly in regional areas, lacking environmental expertise, this does not facilitate or encourage incorporation of planning mechanisms into local schemes for environmental outcomes. This is demonstrated by the very small number of environmentalbased zones in Western Australian local schemes. The Victorian Planning Provisions, which include standardized zoning, specifically provide local governments with suitable environmentally based zones to be applied as appropriate, including a rural conservation zone and a public conservation and resource zone, in addition to key environmental objectives and decision guidelines in all other zones. Such a framework enables local government officers to easily incorporate environmental management into their scheme zones in a consistent manner, regardless of whether or not specific environmental expertise is on hand. Specific guidance for environmental zones and non-environmental specific zone objectives, standardised or otherwise, is essential to enable local governments to appropriately consider environmental matters in strategic and statutory planning processes. Recommendation 5: That WAPC develop standardised or example zone provisions, incorporating specific environmental objectives and specified environmental protection zones, within the MST Operative part 5: Additional land designations in scheme text and on scheme map The inclusion of Environmental conditions within schemes (by reference to a Schedule in the Scheme Text) as is the current condition, rather than including robust environmental guidance within zones and special control areas, will not on its own achieve the proposed purpose to provide for the sustainable use and development of land. Environmental conditions are often considered as an afterthought, and such a framework tends to contribute to misalignment between planning and environmental legislation. Instead, the MST should provide better guidance to integrate environmental management in the development of schemes.

7 Recommendation 6: That there is less reliance on environmental conditions within local schemes to manage environmental impacts on development, through better guidance to integrate environmental assessment and management in strategic planning processes, for example development of zones. The specification of special control areas which may be made by local governments and inclusion of generic provisions, as proposed at a cursory level by the Discussion Paper, will provide greater guidance for the management of particular issues and areas through a robust planning mechanism and is supported. There is a significant opportunity to better guide management of environmental issues and assets by local governments, by including environmental areas as a fourth example of special control areas. The very small number of environmental-based special control areas in WA local schemes demonstrates the need for such guidance. A key example would be the protection of wetlands, which are an environmental asset common across the State and currently not well protected by existing schemes and planning policies. Provisions included could relate to minimum wetland buffers, appropriate land uses in and adjacent to wetland buffers, and the need for management plans and other documents to properly manage the impact of specific land use on wetlands. Further examples may include, but are not restricted to: Significant vegetation (currently being protected in an ad hoc nature by some local governments trying to introduce conservation zones, which may not be useful when applied in an area of urban zoning under the MRS) Coastal precincts and foreshore reserves Floodplains and waterways An example model that could be considered in the review of the MST is that provided by standardised overlays in the Victorian Planning Provisions. Key environmental overlays, including a general environmental overlay that may be applied to any asset as determined significant by a local government and a specific vegetation protection overlay, are provided by the State Provisions. Local Governments may then apply these overlays as relevant to their local government area through development of schedules that refine the broader state provisions to a locally defined area using locally specific decision guidelines. Such an approach would enable the GSP Regulations and MST to provide tangible guidance for environmental management in the development and implementation of planning schemes, which is currently lacking. Recommendation 7: That WAPC develop environmental special control areas and relevant provisions, to be locally applied and refined by local government through schedules, within the MST. Operative part 7: Making a structure plan Paragraph three states that Standard provision will be included in the GSP Regulations that will set out the way in which a plan is to be approved, and the status that plan has once approved. It is noted that a separate discussion paper has been developed regarding structure plans, and a more detailed response to the proposals therein is provided in a subsequent section of this submission. Operative part 11: development of land

8 This section of the Discussion Paper proposes to exempt the commencement or carrying out of any use or development on a Regional Reserve from the requirement for planning approval. Such an approach is not supported where it would result in use or development that is inconsistent with the purpose of the reserve, particularly where the purpose is for conservation. Recommendation 8: That the commencement or carrying out of any use or development on a Regional Reserve not be exempt from the requirement for planning approval, particularly where use or development would impact on environmental values of a reserve created for conservation purposes Operative part 13: Procedure for dealing with applications The current list of matters to be considered by Council should be expanded to include: Water sensitive urban design Local Biodiversity retention Climate change impacts Greenhouse gas reduction, energy efficiency and conservation Coastal processes and protection of foreshore reserves The inclusion of local biodiversity within matters to be considered by Council is important, as there is no current state planning policy that affords consideration to vegetation retention outside Bush Forever. Often, there is reluctance by proponents to protect vegetation outside Bush Forever as it is not seen as significant. Whilst draft State Planning Policy 2.8 refers to the need to develop local biodiversity strategies, the inclusion of local biodiversity as a matter to be considered in planning decisions, which recognises that Bush Forever alone is insufficient to maintain basic levels of diversity, will afford local governments greater support when requiring the retention of bushland in planning proposals. Incorporation of decision guidelines related to other environmental SPPs is also required whilst some planning policies exist, there is little assistance with statutory application of policy principles. Recommendation 9: That water sensitive urban design, local biodiversity retention, climate change impacts, greenhouse gas reduction, energy efficiency and conservation, and coastal processes and protection of foreshore reserves be included as matters to be considered by Council within Part 13 of the MST Review of the Town Planning Regulations 1967 and the MST - Additional Discussion Paper Structure Plans 3. Proposed Approval Process Advertising Prior to Assessment (3.1 and 3.2) Whilst the time benefit of immediate advertising of structure plans without assessment, where the minimum level of information is provided, is acknowledged, such a model is unlikely to ensure best practice planning in an addressing community expectations and environmental considerations.

9 Current environmental policy is discretionary and does not set specific benchmarks for a developer to meet in structure planning to gain approval. The comment that Pursuing a structure plan through the system that is unlikely to be approved is both costly and time consuming for applicants is therefore false in the instance of environmental planning, as the policy requirements tend to be subjective and are often not considered in most planning schemes to be sufficient justification to refuse a development proposal in an urban zone. Should a structure plan not meet environmental best practice, existing policy is not strong enough to refuse it; the intent of the urban zone is stronger than policy in place to protect the environment. If a local government made such a brave decision, it would likely be lost on appeal. Environmental issues resulting from urban development, if not incorporated into structure plan design, are often left to be ineffectually dealt with through environmental management plans that can not achieve anything tangible as the natural environment has been displaced by urban development. Greater benefit is provided through structure plan design that incorporates environmental principles and retains the environment within the urban development; this is based on more discretionary negotiations to achieve best practice outcomes and cannot be achieved through threat of refusal as such statutory environmental policy doesn t exist. The timeframes provided by the proposed approval process concept are not sufficient to address the issue above. Local government would be under pressure to only advertise structure plans for the minimum duration of 21 days, and Council meeting agenda timeframes functionally halve the 60-day after advertising assessment period. Such timeframes are not conducive to discretionary negotiations as guided by current environmental policy. Further, if assessment of the structure plan required further environmental investigations, these would be unlikely to be completed within the timeframes set out in the proposed approval process. Whilst the framework encourages applicants to enter into early discussions with local governments and DPI, this is not a statutory requirement and cannot be guaranteed. If no pre-lodgement discussions occur, a local government should be given the timeframes required to assess a structure plan prior to advertising, to ensure changes can be made to meet environmental best practice in the context of urban development and manage the expectations of the local landowners. Recommendation 1: That WAPC modify the proposed approval process to enable sufficient time for assessment and negotiation to achieve discretionary policy outcomes, with particular regard to environmental management and management of landowner expectations. Right of Review (3.2) The proposed approval process concept provides a right of review to the State Administrative Tribunal (SAT) only to the applicant. This is not appropriate where the process allows the WAPC to adopt a structure plan that has been refused by the Local Government. To ensure structure plans are consistent with local policies, environmental strategies, and community concern, local government should have the right of review to the SAT where the WAPC adopts a structure plan that it has refused, or proposes modifications unacceptable to the local government. Recommendation 2: That the WAPC modify the proposed approval process to provide a right of review to the SAT for local government, where the WAPC makes a decision inconsistent with or unacceptable to the local government

10 6. Hierarchy and content of Structure Plans The development of Structure Plan Preparation Guidelines is supported. It is vital to ensure that the guidelines developed provide for early identification of environmental assets, prior to structure plan design. If environmental studies are undertaken subsequent to structure plan design, the opportunity to incorporate environmental management within a structure plan is lost. A key example is of retaining trees and vegetation in coastal areas; if such assets are not protected within open space, the required level changes to facilitate safe roads and level building blocks prevents their retention at all. Another key example is coastal processes. If appropriate setbacks are not determined early, including analysis of coastal processes and sea level rise, future infrastructure may be at risk, or the ability to retain a robust foreshore reserve to support biodiversity is lost. Key environmental reports which must be developed prior to design of structure plans include: Level 1 flora assessment, including significant tree surveys Level 1 fauna assessment Hydrological and hydrogeological assessment, including identification of water dependant ecosystems and their ecological water requirements Coastal processes investigation Coastal setback assessment Recommendation 3: That WAPC ensures that the Structure Plan Preparation Guidelines specific key environmental investigations to be undertaken prior to structure plan design. The Structure Plan Preparation Guidelines should be developed in consultation with key stakeholders and adopted prior to gazettal and implementation of the GSP Regulations; otherwise there will be no list of essential information against which to assess structure plans prior to advertising. Recommendation 4: That WAPC ensure the consultation and subsequent publication of Structure Plan Preparation Guidelines occurs prior to gazettal of the GSP Regulations.