DEVELOPMENT PATHWAYS AND PROCESSES

Transcription

1 DEVELOPMENT PATHWAYS AND PROCESSES REFORM 12 ADOPT CLEAR DEVELOPMENT PATHWAYS KEY POINTS OF SUBMISSION The Productivity Commission has identified that development assessment systems under planning legislation are among the most complex regulatory regimes in Australia. The Productivity Commission also notes that planning systems in all Australian states suffer from objectives overload and result in significant differences in impact on business costs. The preferred approach is to use a risk-based approach to stream development applications into processes that better correspond with the level of assessment required. The Productivity Commission has identified that strategy and policy-setting are not always able to anticipate the potential impacts to adjoining land owners and the community more generally, particularly where there are a multitude of policy objectives that may need to be resolved at an individual site level. The principle of subsidiarity is regarded as bes t practice in relation to planning governance arrangements, and that decisions should be delivered by the most local level of government that has sufficient scale and capability to reasonably deliver them. (National Urban Policy 2012 see Appendix 1)

2 DEVELOPMENT PATHWAYS AND PROCESSES REFORM 12 ADOPT CLEAR DEVELOPMENT PATHWAYS The Expert Panel s engagement process has revealed widespread confusion about development assessment and a desire for clearer processes (p76 of Ideas Report). The Productivity Commission has noted that the complexity of the planning task has grown significantly, with planning systems increasingly being asked to address more problems. Council agrees that reform in this area is absolutely necessary to achieve community confidence and support economic prosperity of the State. At this stage, the Reform Ideas a re formative and need much additional defining, testing and review to understand its potential benefits and implications. This reform is also dependent on implementation and the approach taken on many other reforms, particularly reform 6-11 which establish the planning documents against which development proposals are considered. These reforms need to be further developed as a package. Council is supportive of the concept of removing low risk applications from a full merit review process, concentrating efforts on complex matters and the simplifying of development pathways so that assessment pathways more clearly link with consultation and appeal processes in order to provide a much a simpler assessment system to navigate. Changes such as tailoring minimum information requirements for certain types of development, opportunity to stage applications, reviewing definitions of development and improving consultation on assessment matters seeking to create clarity and remove blockages and delays (ultimately decreas ing cost for all parties involved) are worthy for further review as part of a reform assessment system. Decision making at the right level and with the necessary skill set is fundamental to quality decision making and confidence in the planning system. Council has significant reservations about Reform 15, particularly with regard to the creation of Regional DAPs and the expansion of the role of private certification of planning decisions. If a Regional DAP approach is adopted then Council would seek represe ntation on this body as well as at the Regional Board level if this too was adopted. The possible implications for implementation of Reform 17 may be of some concern if a different assessment path for infrastructure is implemented where assessment is on ly against design guidelines and not the usual planning processes. Reform 19 responds to Council s previous submissions around the need for more effective arrangements in undertaking necessary enforcement proceedings.

3 DEVELOPMENT PATHWAYS AND PROCESSES REFORM 12 ADOPT CLEAR DEVELOPMENT PATHWAYS 12.1 Revise current development assessment pathways to provide greater clarity in the assessment process and to enable a substantial increase in the use of complying pathways. (New pathways proposed are exempt, complying assessment, merit assessment, performancebased assessment and prohibitedpage 79) At this time there is not enough information to provide a position on whether 12.1 will lead to improvement in the system or alternatively if amendments within the current framework along with other practice improvements would achieve the same outcome. A new system would be a significant and costly exercise as it would involve legislative change as well as potential for re-work of all existing supportive information, Council database systems, etc... (opportunity and risk) A multi-disciplinary working group should be established to further consider this concept (opportunity) The principle of removing low risk applications from the current merit assessment pathway is supported (opportunity) The aim of removing 80% of merit applications is unlikely to be achieved within the City of Adelaide. Based on a review of 13/14 applications (see Appendix 2 for further detail), there is clearly potential for a simplified process for a reasonable number of applications. However, the nature of applications are diverse such that it is not immediately clear how a simple framework could be implemented that covered a large number of applications. One risk is a simplified assessment stream may not fully consider local impacts and could result in poor quality design outcomes (opportunity and risk) Adding more assessment pathways, risks increasing complexity and adding confusion to the system. It is unclear at this stage the difference between the merit and performance-based assessment pathways. Separate pathways should only be established where they improve the alignment with assessment tracks and other process and procedures as per Idea 14.3 (i.e. appeal rights, notification) (opportunity and risk) Prohibited is not seen as a necessary addition to the system and risks missing opportunities for new development that was not foreseen when policy is drafted or policy is not up to date. Example being the high number of non-complying development applications that were received and approved in the State in (see page77 of Expert Panel Report) (risk) 12.1 is linked with a number of reform ideas including form-based zoning approaches (Reform 9) and needs to be further considered with these items (opportunity and risk)

4 DEVELOPMENT PATHWAYS AND PROCESSES REFORM 12 ADOPT CLEAR DEVELOPMENT PATHWAYS 12.2 Revise the definition of development to exclude unnecessary matters from being captured in the assessment process 12.3 Revise the definition of development to minimise the need for change of land use to be assessed and focus more attention of design, particularly in mixed-use zones. There are a number of items within Schedule 1A, 2 and 3 that are only development within the City of Adelaide. These items relate to the particular local circumstances of the City of Adelaide and should be retained or subject to further analysis (see appendix for more details). An amendment to the Schedule 1A that was introduced to facilitate works at the Adelaide Convention Centre could be deleted (opportunity and risk) Some of the merit applications could be deemed low risk and not require consent (supports 12.3). Over reliance on design in mixed use zones risks missing consideration of possible land use conflicts that can be considered in an integrated land use and form assessment (opportunity and risk) A review of the land use definitions (current Schedule 1 is out of date) and installing a regular review process would be an appropriate approach method to address this matter. This should consider both planning and building matters. An opportunity exists to provide a streamlined process for events and temporary activities (opportunity and risk).

5 DEVELOPMENT PATHWAYS AND PROCESSES REFORM 13 PROVIDE FOR STAGED AND NEGOTIATED ASSESSMENT PROCESSES 13.1 Modify planning and building consent by breaking planning and building consents into smaller steps. These could cover land use, building envelope, structure and layout, finishes and landscaping 13.2 Design consent, design statements and design review processes should be incorporated into the assessment process for complex applications 13.3 Other statutory consents should also be incorporated into the consent process where possible (this will link to referral reforms outlined further below) 13.4 Define clear information requirements at each step and allow for deadlocks to be resolved quickly through a complaints handling mechanism 13.5 Allow applicants to stage the assessment process by progressively applying for consents at their discretion, including in principle consents 13.6 Provide ways to negotiate staging of assessment for larger, more complex projects by way of a formal upfront pre-lodgement agreement 13.7 Provide a statutory indemnity for assessment officers for good faith advice, encouraging people to seek early advice. The current integrated planning and building consent process to achieve a single Development Approval is a positive feature of the SA planning system. (opportunity and risk) Improving the opportunity for staging of more complex development proposals would be positive way to reduce unnecessary upfront costs on business. However, the suggested number of steps in 13.1 seems excessive and would delay deliberation of important planning considerations past a point where an authority is left in a position of compromise. It is unclear how process such as referrals and public notification could meaningfully occur without needing to repeat at all/most stages. Policy and form based approach can help to reduce need for, or work in tandem with staged approvals, eg. minimised or nil use change approval where a particular form is adaptable possibly trial in precinct scenario. (opportunity and risk) Staging that delays consideration of important assessment items would be at odds with an integrated design approach (13.2) (risk) Possibly increased staging should be limited to the performance-based pathway. Apply to simple and small proposals would create significant additional administration and possibly negate any savings. (opportunity and risk) In relation to 13.2, the Panel should consider if existing design review arrangements need to be expanded and reinforced. We note that the Victorian Government has removed funding for design review despite it reportedly speeding up projects and improving design ( Funding row heats up, AFR, 3/9/2014 see Appendix 1).The existing SA design review process is also vulnerable as it is not linked or mandated by legislation (risk) Further analysis is required of the cost/benefit of increased and negotiated stages as additional staging increases administration costs and time for a planning authority. Time limits should be clearly set for staged matters noting current uncertainty in practice with staged consent and variations to consents (opportunity and risk)

6 DEVELOPMENT PATHWAYS AND PROCESSES REFORM 13 PROVIDE FOR STAGED AND NEGOTIATED ASSESSMENT PROCESSES Caution should be exercised in considering linking other consent processes (13.3) to the development application process and should only occur where approval processes duplicate each other (consider the same matters) and reduce time and costs in obtaining an approval for a proponent. (opportunity and risk) Support standardising minimum information requirements (13.4). The current Schedule 5 is inadequate for most forms of development, with most councils having developed their own additional information checklists outside of the legislation (opportunity and risk) It is unclear how 13.6 is different to the opportunities provided through the existing Section 37AA prelodgement agreements. The DPTI case management program has been successful in delivering a decision assessment time with focus on pre-lodgement resolution of design matters). EVALUATION OF ALTERNATIVE IDEAS Assessment Timeframes (option 33) This would need to differ across Councils depending on average number of applications lodged annually, complexity of applications and staff resources. Assessment Elements (option 35) This option has potential to become more confusing to the public and could cause an increase in unauthorised development, i.e. land use consent may be issued but not operational, planning consent etc Assessment Conditions (option 36) It should be noted that sometimes conditions are utilised by planning staff, with agreement of an applicant, in order to issue a consent so that an applicant can proceed faster.

7 REFORM 14 IMPROVE CONSULTATION ON ASSESSMENT MATTERS 14.1 The legislation should require notices about development to be attached to properties as part of assessment consultation processes 14.2 Information about development should be published on a searchable statewide online portal, with citizens able to subscribe for updates Reform 14 should be developed in conjunction with reform 3 Charter of Citizen Participation Support 14.1 as a means to improve provision of information to the community about upcoming development in a locality. This approach could also be a useful tool in the legislated consultation process. (opportunity) Support reforms that make it easier for the community to access information. A single state-wide portal has many potential benefits if well resourced. Such an initiative would be costly to implement and maintain. Council seeks to be involved in the development of any new on - line portal that should ideally build on existing systems. See also Reform 27 for more comment on on-line systems (opportunity and risk) 14.3 Link notification, consultation and appeal rights directly to the proposed development pathways rather than as separate issues 14.3 note previous comments under Reform 12. (opportunity and risk) 14.4 There should be an abbreviated assessment process for applicants who engage with neighbours before lodging a development proposal that requires consultation Approach 14.4 with caution as without appropriate checks and balances in place it could be open to abuse and undue pressure being applied on neighbours (risk) 14.4 Noting above comments in relation to 14.1, an alternative idea would be to look at the opportunity to provide shorter time frames to a developer at the construction stage where appropriate notification and contact with adjacent neighbours has occurred thereby reducing delays with construction. The City of Adelaide s current site management process for larger scale development is an example of this approach whereby process around road closures and street occupation during construction are case managed to minimise time delays (opportunity)

8 REFORM 14 IMPROVE CONSULTATION ON ASSESSMENT MATTERS 14.5 Third-party merit review rights should be limited to merit and performancebased assessment and based on the level at which a project is assessed. Similar limitations should apply for infrastructure that has been identified as part of a strategic plan 14.5 & 14.6 unclear how this is different to current opportunities but agree with the principle of third party merit review rights for planning applications that are more nuanced and relate to complexity and impact (opportunity and risk) 14.6 Rights of judicial review for these pathways should be retained, particularly for public interest litigants Provide for councils to seek to resolve issues raised as part of consultation through mediation processes, backed up by good faith indemnities Good faith indemnities are worthy of further consideration. Cautious of planning authorities taking on a mediation role when also assessing a proposal. Whilst worthy as an idea, should be separate and not clear that this needs legislative amendment to bring into operation if needed. EVALUATION OF ALTERNATIVE IDEAS Limit referrals to licenced activities (option 41) This would mean that there would be no referral to the State Heritage Unit or CFS which is considered of grave concern.

9 REFORM 15 TAKE THE NEXT STEPS TOWARDS INDEPENDENT PROFESSIONAL ASSESSMENT 15.1 Regional-level assessment panels should become the primary forum for development assessment, replacing existing assessment bodies There has been no detailed review of DAPs since introduced. The idea of Regional Assessment Panels appears to be based on comments from What We Have Heard but this in itself is not sufficient and runs risk of anecdote determining the option. Any change to the DPA system should be on the basis of robust data and analysis (risk) Council DAP data suggests that it has discharged its functions efficiently and effectively for many years. DAP determines less than 10% of Council s overall applications, decisions overturned by the Court are less than 1% of all applications (risk) Creation of a Regional DAP including the City is at odds with the approach to Cities of Perth and Sydney which have local DAPs with Regional DAPs operating across the adjoining areas. The inner city, especially its high density precincts, presents practical issues relating to efficiency, workload, quality of decisions, high degree of integration with other aspects of urban management and cost which may be best served by a more specialist body than a Regional DAP which probably will possess more suburban-oriented set of skills and knowledge (risk) 15.2 Regional panels will undertake various assessments now handled centrally by the Development Assessment Commission and locally by council development assessment panels 15.3 Council assessment managers will present recommendations to regional panels on development proposals from their councils, with overall coordination of panel business to be managed collaboratively 15.2 It is unclear to what extent current Schedule 10 DAC decisions would be passed to the RDAP. If as per 15.5, they are deemed higher level matters and continue to be assessed at the highest level (state planning commission) there is no value in creating another layer of planning authority (opportunity and risk) 15.3 has some benefits in the local council planning preparing a report to the RDAP. Note comment above that this is subject to the devolution to the RDAP. The overall coordination of panel business will be managed collaboratively is aspiration not a firm proposal on how to do it (opportunity) Question validity of planning assessment being viewed as purely technical. The Productivity Commission (refer Appendix 1) noted that circumstances change and it is often only during the assessment of development or rezoning applications that some final decisions about land uses can appropriately be made. Of course, doing so confers a great deal of discretion on decision makers and it is therefore important that such decisions deliver an overall net benefit to the community. This is most

10 REFORM 15 TAKE THE NEXT STEPS TOWARDS INDEPENDENT PROFESSIONAL ASSESSMENT 15.4 Assessment panels will consist of accredited professionals and be convened by a coordinator 15.5 Higher-level matters will be handled at a state level, with the planning commission taking on the assessment function directly 15.6 A joint state-council committee, operating as a subcommittee of the planning commission, will register and accredit professionals. Accreditation will be managed though professional organisations likely to happen through good processes that allow for business and community engagement, transparency, probity and accountability. Ultimately, though, given the nature of trade-offs in many of these planning decisions and the value-judgements that must be made such decision-making is not, in the end, technical or administrative, but essentially political in nature 15.4 support appointment of professional members, but not exclusively so, as a legitimate skill set that would add value to the assessment process would be local knowledge as per comment above (risk) 15.5 see above 15.6 & 15.7 support introduction of accreditation and ongoing training. This could be done with the existing DAP arrangement (opportunity) 15.7 Panel members and other professionals will undergo periodic training as part of the accreditation process 15.8 Panels will be able to co-opt specialist professional members and local expertise for particular matters. They may call on local council members to participate in panel discussions for development relating to their council area, but not in decision-making 15.9 There will be some flexibility for regions to determine the arrangements that suit them best, but it is envisaged that regional panels will only need to consider contestable matters that are subject to merit and performance-based assessment 15.8 as per comments above a person with local expertise plays an important role in quality decision making for merit planning assessment process. At a minimum a Council Member from the relevant Council area should be represented on the RDAP 15.9 the level of contestable matters that a RDAP needs further consideration as a high volume of work could make a RDAP covering a number of Council s inefficient and lead to delays in decision making (risk)

11 REFORM 15 TAKE THE NEXT STEPS TOWARDS INDEPENDENT PROFESSIONAL ASSESSMENT All applications will continue to be lodged with and processed by council staff, including preparation of assessment recommendations for the regional panel It is envisaged that there will be delegations provided to council staff to enable this to occur Low-risk matters will be handled by accredited professionals, who may be council staff or private consultants contracted as certifiers by applicants. The role of private certifiers will therefore expand Concerns with the possible extent of use of private planning certification, however opportunity to free up government planning resources for other matters. Needs further discussion and resolution of assessment pathways before considering further. (opportunity and risk) support intent but needs detail. How does this replace or differ from existing complaint review process. What role does the current Council Public Officer (CEO) play? (opportunity) The planning commission will audit accredited professionals and assessment bodies and receive and act on complaints. EVALUATION OF ALTERNATIVE IDEAS Capital City Planning Authority (option 7) this is preferred over the Regional DAP model in that more likely to adequately respond to the local planning context affecting the city centre. Idea one further variation of this is a high density specialist which co uld deal with certain DAs in inner rim / TODs. Alternative dispute resolution (option 48) Dispute resolutions should be dealt with by trained professionals.

12 REFORM 16 ENHANCE THE TRANSPARENCY OF MAJOR PROJECT ASSESSMENT 16.1 Provide for major projects of regional significance to be assessed by the Regional Assessment Panel using the performance-based pathway 16.2 Convert existing major projects declaration power into a call-in power, with tighter criteria primarily based on the need for fair and appropriate assessment Support greater transparency and accountability of all decision making in the planning system, including for Major Projects Major Projects, with appropriate checks and balances in place, should continue to play an important role in the planning system 16.3 The minister should only exercise this call-in power following advice from the planning commission based on the commission s assessment against the statutory criteria 16.4 Require either ministerial-regional concurrence or a full Cabinet decision with approval by the Governor required for each major project 16.5 Reinstate judicial review rights for major projects and associated Crown development and infrastructure approvals 16.6 Ensure alignment of environmental impact assessment processes with federal laws, with graduated steps for lower impact proposals and more streamlined paperwork 16.7 Bring mining approvals into the planning system as part of the major projects process, providing a single integrated approval for mine and associated infrastructure development. Support 16.5 as providing an appeal right to challenge the reasonableness of Minister s decision to declare a major project 16.6 reflects the Federal Coalition Government s commitment to devolve assessment and approvals. However, while duplication between Federal and SA major projects / impact assessment may not be great, it is less clear than other State / local assessment processes, policies and practices are presently an adequate or expert basis for addressing national heritage and other matters of national environmental importance (opportunity and risk) 16.6 links to 16.7, infrastructure pathways (17), precinct planning (20), heritage laws consolidation (10.2) and review of Adelaide Park Lands governance and legislation (see Appendix 2 for information on this review). As much assessment is policy-based, there is a need to consider relevant national criteria in the State planning code and like documents.

13 REFORM 17 STREAMLINE ASSESSMENT FOR ESSENTIAL INFRASTRUCTURE 17.1 Establish a separate assessment pathway that will cater for identified essential infrastructure. Categories of essential infrastructure will be determined by the planning commission 17.2 Approval of essential infrastructure should be linked to strategic impact assessment and identified infrastructure corridors and sites 17.3 Detailed assessment of essential infrastructure should be confined to design guidelines for large projects. This could include registration of replicable infrastructure designs 17.4 Continue the position of infrastructure coordinator-general, placing it within the planning commission, providing sign-off for streamlined approvals of essential infrastructure 17.5 Exemption classes for infrastructure should be reviewed as part of the planning code. Ideas for assessment of infrastructure (especially major facilities) need re-appraisal. Infrastructure is increasingly privately-provided and there needs to be greater not less integration with planning, while addressing impact on public realm etc. Whether a separate path will allow rigour in assessment or rather tend to be a privileged path unavailable to others (as has tended to occur with Crown development) is very unclear. The stakes in this are high as scale and potential impact of essential infrastructure can be major (risk) 17.2 is worthwhile but 17.3 implies assessment in isolation of regional plans or structure plan to guide where such infrastructure is located. Use of design guidelines is not enough if poor location selected. Strategic impact assessment, infrastructure decisions and plans need to be closely linked not isolated areas of decision-making (opportunity and risk) It should be clear at which stage the infrastructure (and which infrastructure) is vested to the relevant Council Relevant agency referrals should be built in to any standard or streamlined process Ability to integrate with EPBC Act assessment / approval requirements needs to be taken into account (see 16.6) The establishment of exemption classes is consistent with the general approach to streamlining processes, although may result in compliance/enforcement issues if not well understood by the industry (opportunity and risk).

14 REFORM 18 MAKE THE APPEAL PROCESS MORE ACCESSIBLE 18.1 Work with the court to establish a regional merit review process, such as re-hearings by regional assessment panels 18.2 Enable an official in the department or court to deal with procedural disputes rapidly with a further appeal to the full court The existing appeal system generally seems sound and is not in need of major or urgent reform 18.1 re-hearings seems an unnecessary additional step. Opportunity already exists to enable reconsideration of a proposal through the appeal process in a short time period without need to commence the entire application process again 18.2 & 18.3 Actions that avoid unnecessary delay are supported 18.3 Empower commissioners of the court to make binding arbitral directions at compulsory conference hearings, rather than relying on agreement by the parties 18.4 Consider allowing the court to impose costs in limited cases, on similar grounds to the tribunal s legislation 18.5 Enable the court to register public interest litigants as a procedural reform Imposition of costs should be treated with caution. Awarding of costs may be a disincentive for a developer to continue with proceedings noting the risk that this entails. However, costs can be useful discouragement for vexatious or frivolous challenges, noting that the court already has processes in place to consider these matters. EVALUATION OF ALTERNATIVE IDEAS Alternative dispute resolution (option 48) Dispute resolutions should be dealt with by trained professionals.

15 REFORM 19 PROVIDE MORE EFFECTIVE ENFORCEMENT OPTIONS 19.1 Create more administrative sanctions to simplify enforcement of minor or simple matters such as expiations, enforcement notices and enforceable undertakings 19.2 In addition to monetary penalties, allow courts to impose sanctions such as adverse publicity orders, compensation/offset orders and business improvement orders 19.3 Create more monetary penalties, including a multiplier penalty for companies and a commercial benefits penalty potentially linked to land value 19.4 Allow for civil penalties or damages as an alternative and in addition to criminal sanctions a system is required that enables Council to cease the activity without the opportunity for applicants to play the system (particularly repeat offenders) (opportunity) 19.1 support the principle but need much more detailed analysis to ensure a streamlined process can be put in place that minimises risk of legal challenge (opportunity) support the concept, particularly for repeat offenders. Detail needed around who would be responsible for the actions, costs and time allowed to impose such sanctions? (opportunity) generally it is the builder who is breaching the Act therefore is this penalty going to achieve compliance? (risk) This action currently exists for some breaches; therefore it is unclear if this Idea is proposing change/expansion of existing opportunities 19.5 Impose shared liability for noncompliance on specified professionals responsible for development, subject to reasonable care defences 19.6 Improve links with other regulatory areas, such as consumer affairs 19.7 Require assessment conditions to be aligned with enforcement and more accessible through an online planning portal 19.8 Allow for the planning commission to issue enforcement guidelines to help coordinate enforcement activities more effectively licensing process for owner builders needs to be reviewed and restrictions put in place to limit what they can/cannot build and how frequently (opportunity) 19.7 support intent that achieves a clear line of sight between conditions and constructed development. It is not clear what legislative change would be needed to achieve this outcome (opportunity) 19.8 agree with a commission taking a leadership role in education and awareness raising with increase in overall consistency of application the benefit (opportunity).