Development Assessment Consultation
24 June 2004
Contents
- Introduction
- Background
- The draft leading practice model for development assessment
- Technically excellent assessment criteria
- Separation of roles
- Independent assessment
- Appeals as second assessment
- Defined third party involvement
- Concluding comments
- Contact regarding this submission
Introduction
The Australian Local Government Association (ALGA) welcomes the opportunity to provide this submission to the Development Assessment Consultation. ALGA articulates the collective national and international interests of 675 Australian local governing bodies. In discharging this responsibility ALGA represents local government on national bodies and ministerial councils, including the Development Assessment Forum (DAF), the Local Government and Planning Ministers' Council (LGPMC) and the Australian Building Codes Board (ABCB).
ALGA acknowledges the need for local government, across all jurisdictions, to work with their respective state and territory counterparts, industry, professional associations and the Australian Government to reach agreement on mechanisms to improve the efficiency and quality of planning and development assessment.
It was with these goals in mind that DAF commissioned the Centre for Developing Cities at the University of Canberra to develop a draft Leading Practice Model for Development Assessment (draft Model DA). Although, as a member of DAF, ALGA has supported public consultation around the draft Model DA, ALGA does not endorse several key elements of the model as currently proposed.
This submission focuses particularly on those aspects of the draft Model DA on which ALGA is able to provide comments reflecting the collective concerns of state and territory local government associations. To this extent, ALGA's comments relate particularly to the proposals for technically excellent assessment criteria, separation of roles and defined third party involvement. Further comment is provided on the consequences of these proposals for other practices including independent assessment and appeals as a second assessment.
ALGA notes that the draft Model DA exhibits an overwhelming focus on the most controversial decisions made in the DA process. Figures suggest these decisions, most often taken by elected representatives, account for less than five percent of DA applications. In addressing the issues that surround this small component of the DA process, ALGA is of the view that the draft Model DA fails to acknowledge the important role of elected representatives in facilitating community expectations.
ALGA defers comment on aspects of the model not referred to in this submission to the individual state or territory local government associations to address in the context of planning arrangements specific to their jurisdiction. As a result, modifications made to the model in the future, that address ALGA's concerns, are necessary but may not be sufficient, to gain full endorsement of the draft Model DA by local government.
Background
In Australia, local government is established under state/territory legislation. Its structures, powers and functions are determined by that and other related legislation. In all jurisdictions in the last 10-15 years, the relevant legislation creating and regulating local government has been reviewed and significantly amended or replaced with new legislation that gives local councils greater general competence powers. In most jurisdictions this was the first time that legislation creating and regulating local government had been comprehensively reviewed for forty to fifty years. Generally speaking, these changes enable local governments to provide a wider range of services or to undertake functions to meet the needs of their local communities that may be beyond their historical statutory requirements.
Local government is an elected sphere of government, representative of and directly accountable to, local communities. The fact that it is elected and responsible for a broad range of services in a clearly defined geographic area, means that local government is potentially better placed than the other two spheres of government to understand and meet local needs and to respond to those needs in ways that are appropriate to local conditions. Local government is multifunctional and, unlike other spheres of government, is able to combine and integrate services to best satisfy community expectations.
These characteristics of local government also generate optional approaches to the management of local areas. The fact that local governments have a measure of choice over the range of non-statutory functions they may exercise, as well as the manner in which they interpret their statutory functions, results in a considerable range of differences and diversity across local councils within and between jurisdictions.
The diversity of local government is apparent by reference to a number of characteristics, including differing powers and functions, the level of financial resources, population size, geographic area, location and human resources. Any consideration of local governments' role in building regulation must therefore be cognisant of the diversity of roles and functions and the diversity of issues confronting local governments throughout Australia.
The draft leading practice model for development assessment
The Centre for Developing Cities' (CDC's) final report to DAF, Leveraging the long-term, argues that:
'A model for a reformed development assessment system is about the effectiveness of the 'levers' used to regulate development to achieve the long-term goals chosen by communities.'1
While ALGA accepts this proposition, the fundamental problem with the draft Leading Practice Model for Development Assessment is that it will not necessarily result in a better outcome from development decisions. Specifically, the levers used to regulate development in this model are unlikely to be effective in meeting the long-term goals chosen by local communities.
Although the draft Model DA presents a number of leading practices to improve the DA process, to fully evaluate the model, these practices cannot be considered in isolation. For example, fundamental to the logic applied in the draft Model DA is the false assumption that planning decisions can be based entirely upon the application of theoretically defined technically excellent criteria. It is on this false assumption that the flawed proposals for separation of roles and defined third party involvement are constructed.
The CDC report suggests that during assessment, community consultation is primarily about citizens 'knowing about' changes in their neighbourhood and that 'debate about a proposed project should be about the quality of the criteria to be applied in the future.'2 In this sense, the model overstates the capacity for technically excellent criteria to meet community expectations and as a result, effectively prioritises the development of criteria above a development outcome in line with community expectations.
These problems underscore ALGA's opposition to the proposed separation of roles and particular difficulties with practices related to defined third-party involvement, independent assessment and appeals as a second assessment. The effect of these practices as a whole, is to exclude elected representatives (and consequently the communities they represent) from the decision making process in favour of previously applied technical criteria. The reality is that these criteria are not able to meet community expectations in all circumstances. The involvement of democratically elected representatives is necessary where applications are ambiguous, sensitive or controversial. This is why it is essential to preserve a decisive role for elected representatives in development assessment.
Technically excellent assessment criteria
The draft Model DA 'relies on, and demands, precise, transparent criteria.'3 Such criteria are the foundation for the model and are designed to be translated into clear rules for development assessment and decision making.
ALGA's difficulty with the concept of technically excellent criteria is that no matter how robust and carefully designed a planning policy framework may be, there will inevitably be some applications that, while technically conforming with planning requirements and policy, conflict with the desires and/or legitimate expectations of local communities.
In information sessions and focus group discussions attended by ALGA during the consultation program, the difficulty of developing criteria that work in all situations was noted and a degree of scepticism expressed in relation to this proposal. The Productivity Commission's report on First Home Ownership observes that 'it will often prove impossible to codify policy in terms that eliminate all ambiguity about what development is acceptable.'4
The model itself offers no reassurance that it will be possible to develop criteria to the standard required by the model, this work relies on processes outside the present scope of the model5 - the CDC report notes only the complexities inherent in such a task.
The reality in planning policy is that changes take time and often occur in the wake of a controversial development application. 'Disputes related to development assessment often come down to uncertainties or gaps between the stated and often unstated aims of the statutory document and the effects of the actual criteria.'6 In this sense, it is vital to ensure that the community, through its elected representatives, has the capacity both to influence planning policy and the built environment in situations where policy is ineffective in meeting their needs.
Separation of roles
The development and application of technically excellent criteria is fundamental to the separation of roles proposed in the draft Model DA. The model recommends that elected politicians and councillors take responsibility for developing local planning policies and that independent practitioners be responsible for assessing applications against these policies.
ALGA considers the proposed separation of roles is flawed in that it fails to recognise the essential role elected representatives play in making decisions on developments consistent with the expectations of local communities. Elected representatives have and must retain absolute responsibility for the physical fabric, look and feel of their local areas, particularly in terms of the built environment. While the community must be involved in the development of explicit criteria and policy, they must also have the confidence that their elected representatives will have the capacity to intervene on their behalf where that criteria fails meet their expectations. ALGA believes it should rightfully be argued that development assessment processing must be seen in the context of a 'community partnership' in which the community, elected councillors and professional staff work together to identify and achieve community goals for the future built environment.
The CDC report argues that 'assessing a project is not policy making but the objective assessment of the proposal against transparent, legislated criteria.'7 While this may be true for the vast majority of DAs, this argument presupposes the infallibility of policy. In those situations where policy and criteria fail to meet the expectations of the community, the line between policy making and development assessment is blurred and the assessment of a given development necessitates the input of an elected representative. This is particularly so in circumstances of ambiguity, controversy or sensitivity. The Productivity Commission notes that 'to the extent that necessary judgments cannot all be technical in nature, a role for councillors seems inevitable.'8
Independent assessment
The CDC report observes that 'In many councils the overwhelming majority of applications are already determined by staff under delegated authority. It is estimated that over 95% of all original determinations are made by the professional staff of agencies and councils, most of the remainder by ministers and councillors'.9 For those applications that are currently determined by ministers and councillors, the CDC report argues for a local independent assessor with specialist skills able to make an independent determination.
Again, the model is deficient in that it fails to acknowledge the necessary role of elected representatives in all aspects of the development assessment process particularly as that process manages more contentious assessments not easily evaluated against policy. Although in some cases elected representative may delegate up to 95% of development applications, it is important to note that it is the local council who retains ultimate responsibility and accountability.
As a by-product of the separation of roles, ALGA strongly opposes the use of an independent assessor for those more complex projects which are likely to have significant impact or that are subject to qualitative review. As the democratically elected representatives of the local community, councillors have a fundamental role in evaluating such projects against the expectations of the local community. 'Independent assessors,' by definition are not accountable to voters. Those who are ultimately accountable, councillors, must retain authority to exercise this responsibility.
Appeals as second assessment
The draft model DA proposes that in some cases, decisions will be subject to further review (merit review) beyond the independent panel in cases where the assessment materially affects peoples' rights, assets or wellbeing and is based on qualitative criteria. The model treats 'merit review' as a 'second assessment', in which the same project is expertly assessed against the same criteria, seeking the outcome intended by policy. Such a review would go beyond the independent assessor possibly to a state/territory assessor with no experience or knowledge of the local community. The model defers the specifics of this review process to be 'identified when the statutory document is approved.'10
The model again ignores the potential for inadequacies in criteria or policy that may only become apparent through contentious applications. Under this model, regardless of the impact of the application: 'Assessment is not to meet "the views of the community"'11 but to deliver consistency and fairness against policy, however flawed that policy may appear in the face of a particular application.
The model is unsatisfactory in that it does not afford a role for local government in the review process. The possible effect of this practice is that it would permit appeals by development approval applicants but restrict those from third parties - commonly neighbouring property owners but, potentially, councils which may have been excluded from a legitimate involvement through separation of roles practice. There is an acute failure in the model to explicitly recognize the importance of elected representatives in responding to community expectations through comprehensive review processes.
Defined third party involvement
A further implication of the criteria-driven approach is that 'where value judgments are not being made in assessing a project, third party appeals are not required.'12
The report goes on to say that 'On a case by case basis, if the assessment authority believes that the criteria entail third parties being significantly affected by judgments about quality or impact, rights to third party review can be defined in the statutory document itself.'13
ALGA is of the view that where there is a separation of roles and an unelected, independent body is responsible for development assessment, including a determination of the possible impact of the development on third parties, third party appeals are essential to ensure both communities and councils have the capacity to appeal decisions effecting their local built environment.
In the absence of third party appeals, the model argues that any debate around a project should be about the quality of the criteria to be applied in the future, rather than the future of the particular project. Implementation of this practice would see, at best, planning policy lagging behind community expectation and at worst, the approval of projects detrimental to community interests. Councillors are elected to implement the wishes of the local community - not through future planning policy - but in direct response to the immediate issues of the day.
Concluding comments
The CDC's report suggests that 'development assessment has one justification: making cities and regions better and more sustainable.' This justification however, does not include an acknowledgement that in achieving "better" cities and regions, development assessment needs to provide the communities that live in those cities and regions with assurances that their expectations and aspirations for the built environment will be satisfied in a transparent and accountable manner.
The draft Model DA fails to provide adequate recognition of the essential role of elected representatives and local government in the DA process. The model is dependent on and driven by a flawed belief that it is possible to generate technically excellent criteria that will in all circumstances satisfy policy objectives that reflect community expectation.
Acknowledgment that such criteria are unable to deliver good planning outcomes, necessitates a review of subsequent practices. In this context, it is indefensible to exclude elected representatives from the development assessment and decision making process. Further to the inadequacies inherent in the separation of roles practice, independent assessment, appeals as a second assessment and defined third party involvement are unable to provide adequate mechanisms for community and local government input. The draft Model DA lacks detail, both in relation to frameworks for developing technically excellent criteria and in review and appeal processes. This detail is crucial in determining the ability of communities and councils to meaningfully participate in the DA process.
Above all, in any future model DA, local councils must retain the absolute authority to 'call in' any development application for determination by elected councillors. Under the draft Model DA, jurisdictional call-in and determination by local government is suggested where appropriate. Such call-in powers must be formalised within the model. No other outcome is acceptable in our democratic society.
Contact regarding this submission
Rolf Fenner
Senior Policy Adviser
Australian Local Government Association
Tel: 02 6122 9443
rolf.fenner@alga.asn.au