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Vic Planning Legislative Bill enslaves Victorians to Growth Lobby

Australians receive little useful coverage in the mainstream media about new laws which are constantly being brought in to privilege overpopulation and overdevelopment in various states. Candobetter tries to publish information to fill this gap. The Bill discussed below, if passed, will make Victorians slaves to developers. They will not be able to influence most of what happens in their state and they will be punished if they try to stop developments by other means.

The comments below were on a debate (in an ALP-dominated parliament) was on the second reading of a motion by Mr Batchelor, The Minister for Community Development, for the Victorian Planning Legislation Amendment Bill 2009.
Labor Ministers who spoke in support of this bill were Mr Brooks of Bundoora, Victoria and Ms D’Ambrosio, of Mill Park, Victoria.

Mr Clark of Box Hill and Mr David Morris (in the Liberal Opposition) spoke against it. Here is Mr Clark's speech. We present Mr David Morris's speech in the next article, to be published shortly, "New Vic Planning Legislation Bill "a blatant, naked grab for power"

Criticism in Parliament of the Victorian Planning Legislation Amendment Bill

Mr CLARK (Box Hill) —

The Planning Legislation Amendment Bill has five main purposes. It makes amendments to the Planning and Environment Act 1987 so that any area of Victoria may be deemed to be a growth area, it creates a regime for the establishment and operation of new development assessment committees (DACs), it increases penalties in the Heritage Act 1995, it amends the Melbourne Convention and Exhibition Trust Act 1996 to remove the limitation requiring that the trust only operate within the city of Port Phillip and the city of Melbourne, and it amends the Docklands Act 1991 to allow VicUrban to continue its involvement in projects in the Docklands development beyond 31 December 2005. The last of these purposes is effectively a tidy-up amendment, because VicUrban is already continuing its involvement in such projects.

I would be interested to hear the government’s reasons for removing the limitations on the Melbourne Convention and Exhibition Trust so it can operate beyond the city of Port Phillip and the city of Melbourne. The increased penalties in the Heritage Act continue policy initiatives started in previous legislation.

The bill proposes to give the Governor in Council the power to declare as a growth area any part of Victoria that the Governor in Council sees fit

The two main provisions of the bill are the first ones I referred to. The bill proposes to give the Governor in Council the power to declare as a growth area any part of Victoria that the Governor in Council sees fit, and the bill contains extensive mechanisms for the constitution and operation of development assessment committees.

The government has announced that the initial development assessment committee areas will be the activity areas of Camberwell, Doncaster, Geelong, Preston and Coburg, but they can go much further than that. They can basically be extended as the government sees fit.

Once created, the new DACs will act in lieu of the responsible authority for all developments within their deemed operational areas, as determined by the ministerial order. The order will specify the class of development to which it applies and the areas it covers.

Each DAC will consist of five members. Three, including the chair, will be appointed by the Minister for Planning, and two will be nominated by the relevant municipal council from a group of five persons who are councillors or members of staff of that council.

There are provisions in the bill relating to the disclosure of membership of the DAC, provisions relating to conflicts of interest and disclosure of those conflicts, and provisions empowering removal of DAC members in certain circumstances. The bill specifies that the DAC will have the powers of the responsible authority in relation to the matters it considers. The decisions it makes will be treated as the decisions of the responsible authority. The relevant municipal council is required to provide documents, information and assistance to the DAC and to reimburse all reasonable costs and expenses incurred by a DAC other than the remuneration of the three members nominated by the minister. Once a decision is made by the DAC, it is treated as if it were effectively the decision of the council itself. For example, it is liable to be appealed at the Victorian Civil and Administrative Tribunal (VCAT). This is the scheme of the bill. In putting forward the bill the government has said it is partnering with local government in seeking to improve the operation of the planning system.

I have to say that I have been struggling to think of an initiative announced in the planning sphere, or indeed in any other sphere of government, that is as stupid as the provision contained in this bill in terms of achieving the objectives for which it is said to be put forward.

There has certainly been other legislation that has been more damaging to the community than this, but in terms of its sheer illogicality, this bill is hard to beat.

The argument in favour of this legislation effectively says — and perhaps I will put some words in the government’s mouth — the current planning system is not working properly. There are long delays and interminable arguments.

Bill won't help create jobs

The government may claim councils cannot make timely decisions and that this is inhibiting the capacity to get on with developments and create jobs and prosperity for the state. Taking that argument as a given, this bill does absolutely nothing effective to overcome the bulk of the problems that exist in the system on that account. It simply creates a new decision-making body, the DAC, to make a decision in lieu of the councillors of the municipality sitting around the table in the council chamber.

Every other element of the process remains as it is.

Problems with the adequacy of zoning, planning scheme definitions, flawed criteria for deciding about the issue of planning permits and local government planning departments that are short staffed or where staff are slow, lacking in ability, pedantic or unaccountable — or any of the other accusations that are made from time to time — continue. Exactly the same group of council officers will be servicing the DAC as are currently servicing the councillors.

Beyond the point of a decision being made, if people object to a decision, they can appeal to VCAT against the decision of the DAC, just as they can appeal to VCAT against the decision of the council. The potential for this measure to overcome perceived problems in the planning system is extraordinarily limited. Those who hold out hope that once the DAC makes a decision the development can proceed ignore the fact that if there is strong resident opposition to a proposed planning initiative, that decision can go off to VCAT just as it can in the case of a council decision. If we assume the council would have rejected an application and the DAC would approve it, nonetheless the residents who were opposed to that application could still take it to VCAT. Any potential improvement to remedy the current problems of the planning system is extraordinarily limited. I fear those who were hoping to get great benefit out of this scheme, if it is enacted and implemented, will be sorely disappointed.

But that is only half of the problem with this bill.

The even greater half of the problem is the extraordinary price at which it comes in terms of intrusion on local communities, the diminution of the capacity of local communities to have a say in their own destiny, and the undermining of the role of local government councillors. The government appears to be treating local government councillors with disdain and disregard.

The government has the nerve to call this bill a partnership with local government, whereas in fact it will take away the existing responsibilities of local government to make decisions on planning permits and offers councils only two places out of five at the table of development assessment committees. The government is doing that on an extraordinarily limited and constrained basis.

To start off with, because councillors will have only two places out of five they will always be at risk of being outvoted. The second-reading speech claims that there is going to be an independent chair, but when members look at the bill they will see there is nothing of the sort — the chair is to be appointed by the minister as are the two other non-council nominees.

The local community representatives can be either councillors or members of staff. I think it will be highly likely that councillors will find it virtually impossible to become involved with a DAC. If they do, they are certainly going to be under extraordinary constraints.

There are confidentiality provisions governing members of DACs. The councillors who take part in them are almost certainly frequently, if not always, going to find themselves outvoted. They are then likely going to come under attack from the local community.

DAC Confidentiality provisions stop councillors talking to their communities

They will be trying to defend themselves with one arm tied behind their backs, because they will not be able to cite confidential information in their defence. They will be in a no-win situation.

Councillors squeezed out of planning process, leaving only government officers

If this scheme ends up being enacted, I would not be at all surprised if councillors say, ‘We are not going to take part in this at all. We are not going to be tarred with this brush. We’ll send some council officers along to make the decisions’. Councillors are effectively being squeezed out of the process altogether.

No reason required for overriding public policy

A further concerning aspect is that the DACs are not only being created in defined areas where the government has demonstrated there is some overriding public policy reason as to why in particular cases and in particularly sensitive or important parts of Victoria a DAC should be established.

Crocodilian policies

The DACs can be set up anywhere the government chooses. It reminds me of Churchill’s metaphor of people hoping the crocodile will eat them last while the crocodile goes around gobbling up one at a time. The Brumby government crocodile has designated a handful of local communities to gobble up in the first instance, and it will soon be chomping its way further through other communities.

A bil to destroy any democratic resistance to any development

It will not only do so in activity centres. The government has talked about its policy of imposing high density development along tram corridors. If the government runs into local community opposition to that proposal, next we will find that it has constituted a DAC to take responsibility, for example, for the entire strip of properties along the tram 109 route. Thus that entire strip, running from the city of Yarra through Boroondara to Box Hill, could also be pulled out of the hands of the local community.

The government is seeking an extraordinarily broad grant of discretionary power from this Parliament.

Exactly the same point applies in relation to the power it seeks through this bill to designate growth areas. It is not as if, for example, the government has a schedule in the bill and is seeking to designate areas in the schedule as growth areas; it wants the power to declare any part of the state to be a growth area. It could designate 1 hectare in Mildura, 100 hectares in Sale or a former commercial site in Camberwell to be a growth area, and all the rules relating to growth areas would then apply.

What would also apply is the obligation on people who develop land in any of those areas to pay the growth areas infrastructure contribution. This is a new burden on the people — a new tax being introduced for the first time in Victoria in 2009–10.

The government has claimed that there are going to be no new taxes, but if one looks at the budget papers made available to the house earlier today, one sees that for the first time in 2009–10 something in the order of $84.7 million is going to be collected from growth areas. The budget papers are a bit confusing as to exactly what this is going to consist of, and there is an inconsistency between budget paper 4 and budget paper 3.

Flat tax of $95,000 per ha on land owners whose land is rezoned from rural whether they asked for rezone or not

Budget paper 4 talks simply about a growth areas infrastructure contribution, estimated to be $85 million in 2009–10 — it explains that land brought into an urban growth boundary in future will be liable to a levy of $95 000 per hectare. In budget paper 3, under ‘Revenue initiatives’, at page 369, this figure is split into two figures, which designate a growth areas development fund and a growth areas infrastructure contribution, one of $42.3 million and the other of $42.4 million. This seems, although the budget papers do not make this clear, to reflect the fact that some of the money in the growth areas infrastructure contribution will in turn be assigned to a growth areas development fund — at least that is my assessment. If government members can confirm or vary that, I look forward to hearing what they can tell us.

[T]his bill will enable the government, without any further recourse to the Parliament, to declare an area to be a growth area. Following on from that will be the liability of citizens to pay this increased levy.

Be that as it may, this bill will enable the government, without any further recourse to the Parliament, to declare an area to be a growth area. Following on from that will be the liability of citizens to pay this increased levy. I would have thought that was getting pretty close to violating longstanding constitutional principles about the need for taxation or similar imposts to be authorised by Parliament rather than be imposed by the government through open-ended delegated legislation.

However, regardless of the constitutional principles, it arms the Brumby government with yet another way of grabbing revenue out of the community without proper debate and without proper authorisation by this Parliament.

This legislation seems to be completely at odds with the promises and claims that the Bracks and Brumby governments have made and the Labor Party made when in opposition about planning and their support for local communities. The former planning minister, John Thwaites, made out that he was going to be the champion of local communities and would restore authority, which he claimed had been taken away by the previous government, to local communities. But instead of restoring authority or allowing local communities to have a legitimate say, the government is taking that ‘say’ away from local communities at just about every step of the way. The bill before the house is a particularly gross example of that.

As I said, this bill is not going to be of any significant benefit in creating jobs and speeding up the development process. It operates at only that one particular point in the continuum at which an initial decision is made by a responsible authority.

It also may well not be of much help to small and medium-sized developers if the government is going to exercise its power primarily at the instigation of larger developers who come to it and persuade it to act in any particular case.

The fundamental opposition to this is twofold. On the one hand it does nothing to fix the serious problems which the Bracks and Brumby governments have allowed to evolve and fester within our planning system. It does nothing to overcome unreasonable delays; it does nothing to provide certainty to residents or those seeking to develop properties. It puts one more complicating element, in particular instances, on an existing convoluted structure that is not working properly.

Yet on the other hand it dramatically derogates from any potential for local communities to have a say through their local representatives. It is treating local government and local councillors with contempt, asking them to be part of a process through a DAC in which they have only two votes out of five — three votes are appointed by the minister against them — and to try to defend their position with one arm tied behind their backs.
The bill, whichever way you look at it, is badly flawed.

It attacks principles of democracy, of devolution and decentralisation. It attacks principles of accountability to Parliament by government for revenue raising. It is bad in all of those respects, and it is opposed by the coalition.

Source: “Planning Legislation Amendment Bill, (Second Reading), Members Statements, Assembly, Hansard, Tuesday, 5, May, 2009 pp. 1103-1115