13 December Dear Sir/Madam SUBMISSION: PLANNING REFORM PHASE 2. Introduction

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1 13 December 2013 Western Australian Division Ground Level 215 Hay Street SUBIACO WA 6008 PO Box 1695 SUBIACO WA 6904 A.B.N Leading effective planning for people and places Dear Sir/Madam SUBMISSION: PLANNING REFORM PHASE 2 Introduction The Planning Institute of Australia (PIA) is the national body representing planning and the planning profession. Through education, communication and professional development, it is the pivotal organisation serving and guiding thousands of planning professionals in their role of creating better communities. As the peak body for planning professionals in Australia, the Planning Institute of Australia (Western Australian Division) (PIA) commends the Department of Planning in undertaking the Planning makes it happen: Phase Two (Phase Two Reform). The State is also commended for applying the principles of the Development Assessment Forum s Leading Practice Model. The Institute has been actively involved in the identification and implementation of planning reform though Phase One and in the development of Phase Two through participating in steering groups and workshops with the Department. Enabling Planning Reform PIA believes that no real planning reform can occur unless there is a culture in planning that can embrace it. Planning reform needs to be seen as being about legislative, operational and cultural change. A supportive culture of planning reform is one which PIA is taking on with its new Planning Matters strategy. Planning matters and planning makes a difference is the pitch of a programme intended to advocate for the important role planners have, but also to provide cultural change programs across Australia with a focus on risk management rather than risk aversion. This involves promoting the creation of planning organisations that have a constructive outcome focus rather than just a process culture. Planning in some circles has a reputation of being process focused, bureaucratic and obstructive? Whist in some cases a degree of criticisms can be justified there is little doubt that the red tape Enquiries: PIA WA Division Telephone: (08) wa@planning.org.au Facsimile: (08) Web:

2 argument can become exaggerated. In principle a quick decision is not necessarily a bad decision if the appropriate consultation and review has been undertaken and processes certainly do not need to be duplicated. PIA believes that the planning system should be judged by the quality of its outcomes not just the speed with which those outcomes are delivered. The focus of planning reform on reducing development approval times is achieving culture change to a point but the complexity of the professional culture supports the view that a more comprehensive approach to culture change is required if more fundamental planning reforms are to be achieved. Constructive culture change in the profession is potentially a more successful approach to achieve planning reform than just trying to streamline existing approval processes. Local Government Reform PIA believes that the reforms identified in Phase Two need to be prioritised so that they can be implemented quickly by the fifteen or so local governments that will be created through the reform of metropolitan local government. The reform of local government with a focus of amalgamations and boundary changes will create the need to review local planning strategies and schemes. Many councils will find that they are responsible for administrating more than one scheme and it is important that these are quickly unified to avoid inconsistent town planning provisions. The key priority needs to be therefore on the following; Model scheme text and regulations review (ongoing Phase One priority) Improving local planning scheme review processes (Section 3.5). This includes streamlining the content and process of preparing local planning strategies. Improve local planning scheme amendment process (Section 3.6) It is also important that the State completes the preparation of the metropolitan sub-regional structure plans and the urban consolidation plan for inner suburban councils currently being drafted. Councils will need clear guidance on what is to be included in new planning schemes and this will need to be completed no later than mid-2015 when the proposed reforms to local government are to have occurred. Department of Planning (DoP) PIA does have significant concerns about the alibility of the DoP to deliver on the reform process. A number of reforms can be made to speed up scheme amendments and structure planning, however if the Department does not have sufficient resources to process the full range of applications in a timely manner then the benefits of the reforms will be lost. It is acknowledged that there is a need for budgetary constraint by government due to the current performance of the economy. The result of these constraints may however have negative economic impacts if delays in the processing of planning applications act to frustrate investment in the State. In the context of monitoring the impacts of planning reform and improvement it is noted that regulations are to be drafted requiring local governments to report on their processing of development applications. It is PIAs view that a similar requirement should be imposed on the DoP across the full range of applications that it is tasked with assessing. Reporting should not just be on an annual basis but 3 monthly provided to the public so that the trends and processing times can be identified and those responsible for their management can be held responsible. 2

3 Ongoing involvement in Planning Reform Several Phase One reform projects have not been initiated and PIA ask that clarity be given as to whether all Phase One projects are still being pursued, and prioritise these actions before undertaking the Phase 2 proposals. With respect to the review and implementation of the Phase Two of the planning reforms it is suggested that the DoP closely involves PIA and other industry groups in order to provide ongoing advice and support. In the past the reform initiatives have been somewhat spasmodic with significant periods where there has been no engagement with the relevant planning and development industry groups. It is recommended that a formal Planning reform Industry Reference Group be established and under the direction of the Minister for Planning to provide independent advise on the reform process. This Group would work closely with DoP and be supported by the State Government and interested Peak Industry Bodies. The group could operate in a similar way to the Housing Industry Forecasting Group which collaboratively looks at dwelling comments on an annual basis. The focus of the Group would be on advising and reporting on planning reform. It would have a continuous improvement philosophy so that the whole process of reform is undertaken and reviewed with the objective of creating and then reforming best practice models. Summary comments on key aspects The following table represents a commentary on key aspects of the reform proposals. Section Review of the Metropolitan Region Scheme (MRS) 3.2 Improve amendment process for region planning schemes Comment Support proposed amendments and review. Use of Urban Deferred designation for industrial land would require identification of criteria for lifting deferment. Concerns have been expressed that the general process for lifting deferment is becoming more difficult as referral agencies attempt to revisit the issue of zoning. Consideration needs to be given to the list of reservations including identification of light rail routes into the future separate from road and rail reservations. A review also needs to be undertaken of public purposes such as universities to allow more flexibility in their interpretation. Refer to Appendix 1 for a discussion of issues involved with delays to the processing of regional planning schemes. Support proposed amendments to procedures for identification of minor amendments and substantial alterations to amend regional planning schemes. Strongly support ability not to have to referrals to EPA where no relevant environmental considerations exist. Support for the reduction of amendments for Division 3 applications to 60 days and Division 4 to 42 days. 3.3 Sub-regional structure plans to Support the proposed amendment to the Planning and Development Act to enable automatic or concurrent 3

4 amend region planning schemes 3.4 Concurrent amendment of regional planning schemes and local planning schemes 3.5 Improve local planning scheme review process 3.6 Improve local planning scheme amendment process amendment to a regional planning scheme to reflect the relevant zonings of a sub-regional structure plan once the structure plan is given final approval. The Department of Planning should consider subregional planning for areas outside of the Perth metropolitan region. It is important that the MRS amendment process occur at the same time as the advertising of the sub-regional structure plan to ensure the community is provided with the relevant context. The MRS amendment should not occur at a later stage subsequent to the advertising of the sub-regional structure plan. The statement that plans may not go to the level of detail of clearly defining the boundaries of roads reserves or lot boundaries for certain zones is of concern. In general Sub-Regional Structure Plan should not be considering new lot boundaries or local roads. A Sub- Regional Structure Plan needs to be strategic and broad in nature leaving the detail to the district or local structure planning processes. The discussion paper does not clearly outline exactly how the process would be implemented, it currently amalgamates the two different planning processes which could lead to the obscuring of objectives and outcomes of each, undermining the actual intent of the current planning framework. Support proposal. It is logical that concurrent amendments for all classes of MRS rezonings should be standard practice. Top priority given reform of metropolitan local government and the need to quickly review schemes (refer to general commentary) Support the development of standard MST provisions to apply to all local government schemes. Support the review of approval requirements. Support improvements to administrative provisions. Support amendments to regulations to make the scheme preparation and amendment process clear. Support both streamlining the number and content of local strategies and consideration of a ten year major review timeframe for local planning schemes. In terms of timing the culture of implementation and willingness for the State and Local Government to progress through the amendment process has a fundamental impact. An important initiative would be the application of time frames (similar to the development application process) that could help see changes in turnaround times. Support proposal to modify the process for referral of proposed amendments to the EPA, such that certain amendments with no relevant environmental considerations are not required to be referred to the EPA. The principles of the Track Based System (DAF model) should be integrated into the process. The EPA resources should be diverted to the areas where there will be most impact; reviewing TPS amendments from Commercial to Town Centre for example may not be the optimal use of resources. 4

5 3.7 Streamline structure plan process 3.8 Develop a track-based (risk assessment) development assessment model 3.9 Private certification of development applications 3.10 Standardise delegations of local government development decisions Support the proposal to introduce a minor scheme amendment process. Support the preparation of model local scheme provisions to guide the preparation of structure plans. Support the elimination of the need for dual approvals with clear model local scheme provisions. Local government could be the single point of determinations of local structure plans where they qualify under the accreditation identified in Section 4.4. below. WAPC needs to be focused on regional planning down to sub-regional structure plans and providing guidance on the process but not the approvals. The commission should however be able to require its approval of structure plans for local governments (those councils not qualified under Section 4.4 accreditation). A right of appeal needs to be maintained to SAT. If the WAPC becomes the single point of approval for the structure plans then considerably more resources will be required. Currently the local authorities undertake majority of liaison with the applicants on the preparation of the local structure plans. The local authority understands and resolves the vast majority of the issues associated with the plan, only then is it passed on to the WAPC for consideration. Strongly support the development of a track based (risk assessment) development assessment model using the Development Assessment Forum model as a base and modifying it to suit Western Australia, with the WAPC to act as the guiding authority for local authority implementation. Currently there is not enough detail with the proposed reform 3.8 Develop a track-based (risk assessment) development assessment model to explain exactly how the modified system could be applied within WA, therefore, further details should be provided to assist in the consideration of this reform proposal. Track based assessment should also be applied to the DoP and this should be linked to reporting of performance (refer to general comments on requiring the Department to report on performance). Support the investigation of a long term move for accredited and qualified planners to be able to provide private certification. The PIAs certified practicing planner accreditation could be on criteria considered for suitable people to provide this service. Part of the benefit to local government of private certification is that it reduces the number of applications that need to be processed with a focus on policy development. As an interim measure support a trial of the Brisbane RiskSmart model or similar system to be applied following amalgamation of metropolitan councils. Support the linking of this process to the proposed track based assessment model. Support the preparation of the Model Delegation Schedule. This could be linked to accreditation of local government (Section 4.4). The amalgamation of local governments in the metropolitan area provides an opportunity to implement this approach. 5

6 3.11 Electronic application system Support the development of a full electronic processing and approval system. Twelve local councils have already developed a portal for online creation, submission and tracking of building and planning applications Refining the role of Development Assessment Panels Support changes to optional and mandatory thresholds so that applications that would be more easily determined by council administration under delegation can be more quickly dealt with (eg Industrial buildings). Support expansion of option thresholds to allow smaller scale residential proposals (less than 12 units to go to DAPS). These can be as controversial as larger projects. Support the inclusion of regionally significant applications such as basic raw materials, extraction applications being referred to DAPS as an optional threshold. Support the reduction in the number of DAP panels as experience is showing that a key advantage of DAPS dealing with a number of councils is the improvement in condition writing through the decisions of DAP panels that have the same membership. The meeting quorum for DAPs should be 3 people and not necessarily one coming from council. Situations have arisen where elected members have shown conflicts of interest and the inability to sit on a panel means that no quorum is reached. It is not expected that the quorum would need to operate except in rear circumstances where no council elected members were available. Presiding members play a critical role in managing meetings and there should be an ability to have the most experienced of them to be appointed to any DAP where there is major controversy regarding a proposal. 4.0 Governance and administrative reform 4.1 Design and development Support preparation of a good design manual rather than an SPP, stressing the importance of quality design (especially for higher density development). Support the establishment of design advisory panels which could be linked to local government accreditation (Section 4.4). Support the requirement for DA s over a certain threshold to be reviewed by a design review panel. Support the amendment to the Multi-Unit Housing R- Codes to ensure that provisions require multi-unit housing to be designed by a qualified registered architect. 4.2 Role of the Western Australian Planning Commission (WAPC) Support the review of WAPC functions but in an open process providing input from all stakeholders. This should not be an internal review as proposed The WAPC needs to be seen to be independent of the DoP. A perception has arisen by some that this is no longer the case. The functions and activities of the WAPC need to be opened up to public scrutiny. Agendas (with some exceptions similar to those applied to local government) should be publicly available prior to meetings. The minutes should also be available and all meetings should be held in public. A deputy chair of the WAPC should be appointed to act if the chair is unavailable. The membership of the commission should also be reviewed to ensure it has more independent strategic advice. In the Phase One planning reform project, the WAPC 6

7 agendas and minutes were proposed to be placed online, to assist in transparency of decision making, however, this has not occurred. All of local government minutes are available on-line (one of the accreditation criteria required in planning reform 4.4) whereas only a selection of the WAPC Committees agendas and minutes are currently available online. Recommend all agendas and minutes be made available online. 4.3 Improve the function of the Infrastructure Coordinating Committee 4.4 Local government planning accreditation 4.5 Funding of region planning schemes and initiatives 4.6 Administrative review of the Planning and Development Act 2005 Strongly support the proposal to review the function of the ICC to clarify the type of matters that the ICC should be involved in; develop guiding principles and terms of reference; and develop a 12 month work program Strongly support proposal to review the membership of the ICC to ensure that it has a high level strategic focus. Strongly support initiatives for improved co-ordination and information sharing between departments and infrastructure agencies. As with the WAPC these meetings should be held in public. Support the proposal for accreditation of local government on the basis that they are then given a higher degree of autonomy in decision making (eg no DAPs and approval of structure plans rather than WAPC). They should also be able to approve small lot subdivisions and advertise scheme amendments without WAPC for approval. Support the development of an accreditation system and this could be introduced to coincide with the amalgamation of local governments. Strongly support the role of the MRIF and its continuation and review of taxing level to increase the ability of the WAPC to implement the MRS. Funding needs to remain direct to WAPC and not to Treasury as consolidated revenue. Support separate improvement funds for other regional schemes where the tax collected and applied is within the scheme area. See attached Key issues and proposals Other General Comments Several reform measures which have been identified in the WAPC s Planning Improvement Program and are not discussed in this Reform discussion paper, include: - It is recommended that there be improved performance monitoring which highlights the quality of the decision making, not just measuring the number of days taken to assess an application, as a significant number of the proposed planning reforms only relate to the processing times. The planning process needs to ensure it is delivering good outcomes. Referral timeframes for all agencies should also be pursued, the reform paper only mentions the timelines of the EPA, but there is no mention of referrals to other agencies, ie Main Roads, Department of Transport, Heritage Council etc which can result in significant delays in the processing times. 7

8 Administrative review of the Planning and Development Act 2005 Key issues and proposals Section 1 Injurious affection and compensation 1.1 Transference of jurisdiction to the State Administrative Tribunal to determine compensation and betterment matters 1.2 Ability of original owner to assign compensation rights Comment The proposed amendments will ensure that all questions regarding compensation for injurious affection are decided within one location the State Administrative Tribunal. This proposal will reduce costs to both the planning authority (ie, the Local Government or the WAPC) and to the owners of land. The recommendation of the LRC is not supported and the WAPC position here the parties are required to deal with injuries affection at the time it arises. 1.3 Definition of planning scheme Recommendation lacks detailed explanation. Require more information to comment 1.4 WAPC capacity to take land Agree with the proposal but only in the limited circumstance described. 1.5 Ability to purchase adjoining land Agree with the proposal but only in the limited circumstance described. 1.6 Compensation payable only once Proposal agreed as it is a clarification of the existing position. 1.7 Interest accruing where election to purchase process delayed Proposal agreed as it is a clarification of the existing position. 1.8 Uniform compensation provisions Proposal agreed to prevent unfair costs to Local government. 1.9 Other proposed modifications to injurious affection provisions 2 Region planning schemes 2.1 Amendment process for region planning schemes Administrative in nature Support Amendments to the region schemes to follow the truncated process set out in Division 4, unless in the opinion of the WAPC the amendment is considered a substantial alteration where it will be subject to the longer process set out in Division 3. Reduction of advertising as noted Division 3 from 90 days to 30 days and reduction of advertising in Division 4 from 60 days to 42 days The majority of the proposed changes to amendment processes are just tweaking around the edges removing time from the advertising process is unlikely to significantly reduce the total amount of time an MRS amendment takes. Proposes the formalising of non-statutory prereferral processes. It is unclear what this actually relates to? Further information should be provided in this regard. 2.2 The Swan Valley Planning Act 2005 Brings the Swan Valley Planning Act provisions in line with the proposals as set out above. Supported 2.3 Concurrent advertising of Region Planning Supported. This process appears to have been 8

9 Scheme and Local Planning Scheme amendments 2.4 Conflict between a Region Planning Scheme and a Local Planning Scheme priority of instruments working adequately for land in new urban areas it might be more complex where the land is being zoned for other purposes. Query whether this is an appropriate amendment the current provision in the MRS makes it clear that if a Local Planning Scheme in relation to zoned land only is at variance with the zoning in the MRS, that the Local Planning Scheme prevails. This seems appropriate for example, the MRS may provide a very broad zoning over the whole of an area as Industrial, and the Local Planning Scheme may identify a component of that land for some kind of related institutional use which is zoned differently. It would be inappropriate and unhelpful if the Region Planning Scheme prevailed. 2.5 Electronic versions Supported 3 Local planning schemes 3.1 Amendment process for local planning schemes Support the broad concept of these proposed reforms, however, the allocation of timeframes should extend to the WAPC and referral agencies to ensure that the process is transparent and more efficient. A current frustration of members has been the ability for the WAPC to process and assess amendments in a timely manner Proposes that only amendments with environmental values that are prescribed require referral to the EPA. This is supported, as it will negate the need for many amendments to be reviewed by the EPA This proposal seeks to remove all of the generally applicable model scheme text provisions from individual planning schemes, and put them all into State based regulations. This in principle is considered a good idea. Currently each Local Planning Scheme has its own provisions regarding how to apply for approval, how approval is issued, any advertising requirements, the time to make a decision. The difference in approach creates a real barrier to the sharing of planning across Local Government areas. Removing all of these provisions from Local Planning Scheme will not affect substantive planning issues, and will assist in reducing the bulk and complexity of Local Planning Scheme. 3.2 Objects of a local planning scheme and local planning strategies The inclusion of a reference to local planning strategies in the Act would help to provide them with a greater status and clarification of the range of objectives to be included in a Scheme is supported. 3.3 Restrictive covenants The Local Government power to remove only restrictive covenants relating to the number of 9

10 dwellings allowed on a lot is supported. 3.4 Meaning of the term adopt Supported. Administrative Change 3.5 Regulations for Local Planning Schemes This proposed amendment will ensure that all Regulations are created by the same body. This proposal is beneficial. For example under the PD Act, regulations relating to some things have to be made by the Minister for Planning while others have to be made by the Governor. This means for example, the Model Scheme Text would need to be in a different set of regulations to the uniform development approval provisions which are proposed in proposal Ensuring that all regulations are made by the same body means that like matters can be grouped according to subject matter rather than in accordance with the entity that has approved them. 4 Cash-in-lieu of public open space 4.1 Requirement of a condition to set aside land Supported. This proposed amendment will allow the WAPC to request cash-in-lieu without first having to request the land be given up. 4.2 Trust account Support 4.3 Approval of the Minister Need to clarify, whether the WAPC is able to be the approval authority for the money that is paid into a reserve account rather than a trust fund. 4.4 Joint subdivision agreement It is difficult to provide commentary on this until the definition of joint subdivision agreement is prepared. 4.5 Method of valuation Support for SAT to deal with this matter 5 Subdivision and development control 5.1 Conflict between subdivision and local planning schemes Recommendation lacks detailed explanation. Require more information to comment 5.2 Clearance of conditions Supported. Administrative Improvement 5.3 Recovery of costs of original subdivider Proposal supported on the basis of equitable treatment of developers 5.4 Local government supervision of road design Deemed approval provisions supported following expiry of a timeframe 5.5 Definition of development Supported 6 Time limits on endorsement of subdivision plans 6.1 Expiry of plans under section 145 Supported. Administrative Improvement 6.2 Issuance of title under section 146 Supported as an Administrative Clarification 7 Pre-selling amendments to section 140 Change to not require the WAPC approval separate from subdivision ids agreed. 8 Enforcement and legal proceedings 8.1 Increase in penalty The proposal to review penalties based on comparable situations are supported. 8.2 Enforcement of local planning schemes and Supported as an Administrative Clarification the scope of section Minister s enforcement powers under section Powers of responsible authority section 214 Recommendation is generally supported but requires more information to comment in detail. Recommendation is generally supported but requires more information to comment in detail. 10

11 8.5 Unauthorised subdivision works section 219 Recommendation lacks detailed explanation. Require more information to comment 8.6 Planning infringement notices section 228 Supported as an Administrative Clarification 9 Public works exemptions 9.1 Range of public and minor works Supported. Administrative Improvement 9.2 Public and private bodies Supported as an Administrative Clarification 9.3 Discrepancy between local government and State agencies Supported that the crown and Local government should not be bound in terms of public works to the context of Regional planning schemes Consultation where exemption applies Supported as an Administrative Clarification 10 Crown and State land 11 State planning policies There needs to be a more rigorous discussion regarding SPPs and what their role and objectives are. Simply allowing guidelines as proposed by this proposal is probably not that helpful without a more robust discussion, as it adds just another layer of document to review. In some respects, it would be better to separate SPPs into other implementation policies, and then pure planning policies. There also needs to be greater level of consistency in the drafting of SPPs as some are highly detailed and other more motherhood statements. 12 Interaction of the Planning Act with other legislation Supported APPENDIX ONE 3.2 Improve amendment process for region planning schemes Delays In addition to the three major delays list there are delays relating to staff being available to progress matters effectively. Delays are closely related to the resourcing of Local and State Government departments, not only the Planning Department but also EPA, Water Corporation and others. Number of reviews The number of times that ALL authorities review an area within an amendment needs to be streamlined. This is important for a number of reasons: Agencies are duplicating processes and utilising scarce resources. Repeating administrative processes is confusing for the community and the development industry. The additional consultation (at each stage of the process) rarely uncovers issues not already understood at the beginning of the process. For example the Hazelmere Enterprise Area Structure Plan demonstrates the lengthy process a landowner must progress through to achieve a change to the MRS and TPS. The area was identified within the WAPC s Economic and Employment Lands Strategy: Non-heavy industry (April 2012) as suitable for industrial development. To ensure development progressed in an orderly manner a structure plan, MRS and TPS was required. Hazelmere Enterprise Area Structure Plan was prepared: 11

12 1. All relevant agencies and community groups were consulted during the preparation of the structure plan. 2. Structure plan formally advertised and those agencies and community groups were invited to comment. 3. Local authority and State government adopt. Strategic Environmental Assessment 4. The Strategic Environmental Assessment Panel indicated a review was not required. Metropolitan Region Scheme Amendment: 5. Prior to advertising the amendment all agencies (including the EPA) are referred the amendment for inform comment. 6. If the comments are positive then the amendment is advertised formally. All agencies formally comment and again the public comment. Town Planning Scheme Amendment: 7. The same area is required to be amended within the local scheme so the TPS is referred to the EPA, agencies and community yet again. 8. Council makes a determination. The public has been consulted at the beginning of the project then asked to comment formally three more times. The agencies have informally commented on the same area twice and formally three times. The EPA has formally commented twice on the same area as well as reviewed by the Strategic Environmental Assessment Panel. With these types of statistics it is easy to see that planning can be confusing simply due to the duplication of process. Then the land owner is told they need to lodge a development application that will again be forwarded to all the same agencies. Perhaps there are some refinements to the administrative processes that can be achieved. Recommend that agencies review comprehensively once and that the same officers are asked to review the projects as they progress through administrative processes. Encourage concurrent advertising for MRS and TPS. Yours sincerely, Charles Johnson FPIA President WA Planning Institute of Australia 12