Australia Democracy, devolution and governance, Housing and planning

Planning integrity reforms must not be a power grab

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Photo by Fabian Mardi on Unsplash

In this opinion piece, Stephen Rowley looks at the findings of Victoria’s recently released independent broad-based anti-corruption commission (IBAC) investigation ‘Operation Sandon’. The investigation looked into the allegations of corrupt conduct involving councillors and property developers in the City of Casey in Melbourne’s south-east, and makes the case for a comprehensive review of the Victorian Planning system to improve the efficiency, quality, and transparency of decision-making processes. Stephen is a Senior Associate at SGS Economics and Planning, Adjunct Senior Lecturer at Monash University, and author of The Victorian Planning System: Practice, Problems and Prospects. He gave evidence to IBAC as an expert witness regarding planning system design.

IBAC’s Operation Sandon report into planning decision-making in the City of Casey, released last Thursday, has further fuelled expectations of a major shakeup of the planning system. It has long been rumoured that the state government is eager to make major changes to Victoria’s planning regime, and the report provides an opportunity to add governance and integrity justifications to those reforms.

The commission’s most dramatic recommendation is that statutory planning powers – essentially, the deciding of planning permits – be removed from elected local councillors and instead be given to independent decision-making panels. This raises the spectre of a major dilution of community input to the planning process.

This prospect was reinforced by Premier Daniel Andrews’ comment, in responding to the findings, that it was the government’s view that “the role of local councils in significant planning decisions should be reduced.”

While this prospect may be alarming to some, the Operation Sandon report itself is measured and thoughtful. It will be important, however, that the Andrews government responds holistically to the IBAC recommendations. An incomplete implementation of the recommendations, or their opportunistic use as cover for an ill-conceived transfer of power from local governments to state government, would cut against the commission’s findings.

Premier Andrews’ reference to the loss of councils’ powers over significant planning decisions suggests a more limited transfer of power away from local governments than IBAC has proposed. However, it also seems likely that the state government is after a quicker fix than the full implementation of independent planning panels, which would be complex and politically challenging to achieve.

This raises the risk of a half-baked response to the IBAC findings. Reporting in recent months has suggested the state government has been preparing a suite of reforms under which the state government would assume responsibility for various significant projects and precincts. This would extend a longstanding pattern of creating special ‘carve-outs’ in the system for certain categories of proposals considered too important to be subject to the standard assessment by councils.

The IBAC report should not be used as political cover for further ad hoc expansion of ministerial action at the expense of local governments. Ministerial decision-making is not inherently more transparent than that of councils. The commission was critical of the lack of reasons given for key planning decisions at both council and ministerial levels, for example, and it is far more common for ministerial decisions to be made without detailed publicly-released justification. In 2017, the Victorian Auditor-General expressed similar criticism of the lack of transparency surrounding ministerial decisions.

Indeed, the commission specifically notes that the corruption risks it identifies in relation to councillors also apply to the minister, and that the issues it raises cannot be solved simply by transferring responsibility from councils to the minister.

Similarly, the commission’s proposed independent planning panels would need to be part of a suite of reforms to avoid them presenting their own problems.

A key objection is the potentially anti-democratic nature of such panels. The commission tries to address this head-on: one section of the report is titled “Removing decision-making power from councils is not anti-democratic.” The commission argues that public opinion has a limited role to play in decision-making at the permit stage.

Theoretically, this is an appealing position – policy-setting should be democratic, but having set that guidance assessment of planning permits against that policy should be a more administrative exercise.

The difficulty is reconciling this with the commission’s own findings about the way planning policy is written in Victoria. The IBAC report is just the latest review of the system to note that the Victorian planning frameworks leave, as the commission puts it, a “broad scope of plausibly ‘correct’ decisions.” In simple terms, planning frameworks are too vague.

As they note, this presents a corruption risk because improper decisions will not clearly be contrary to policy – yet this critique also undercuts the argument that planning permit decisions are purely administrative.

The lack of clarity in the planning framework means that it is only when planning permits are sought that many policy questions are truly resolved. If that problem is not fixed, these critical decisions would be shifted to unelected bodies. That would indeed be anti-democratic.

The IBAC report is just the latest in many critical reviews of Victoria’s planning framework – including by the Victorian Auditor General, Better Regulation Victoria, and the Legislative Council’s Environment and Planning Committee – that have criticised the system in similar terms.

Taken in combination, these reviews paint a picture of a planning system that is in need of a comprehensive review to improve the efficiency, quality, and transparency of decision-making in Victoria.

Previous rounds of planning reform have been ineffective and even counterproductive. It is important that the response to IBAC’s report is more sophisticated, and not simply an extension of the reactive reforms of the past.



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