Clifford beats the Government

Sustainable Australia Party MLC Clifford Hayes is delighted at the support from the Opposition and Crossbench he received for his Private Members Motion, aimed at restoring local democracy in planning issues and curbing the power of the Victorian Civil Administrative Tribunal (VCAT).

Under the Motion, Clifford is calling on the Government to give Councils more power to defend their communities from inappropriate developments.

Mr Hayes’ Motion, which was passed on Wednesday afternoon, reads:

That this House calls on the Government to give greater weight to the local planning policy framework by –

  1. Amending section 84B of the Planning and Environment Act 1987, so that the Victorian Civil and Administrative Tribunal is required to give effect to local planning policies, rather than just taking planning schemes into account;
  2. Amending section 60 of the Planning and Environment Act 1987, so that VCAT ‘must’ rather than ‘may’ consider “any strategic plan, policy statement, code or guideline which has been adopted by a Minister, other government department, public authority or municipal council”, and;
  3. Requiring the Minister for Planning to implement mandatory height controls rather than discretionary height controls where mandatory controls are sought, at the height requested by municipal councils in planning scheme amendments, either on an interim or permanent basis.

Clifford said: 

I want to sincerely thank my Legislative Council colleagues for the support they gave to this Resolution. I believe it shows there is support in the Parliament for real change to a planning system which is out of control and serving local residents poorly.

I am very encouraged by this support. I now plan to develop and introduce to the Parliament a Private Members Bill to amend the Planning and Environment Act consistently with the Motion I moved today. I plan to consult widely with Councils, resident action groups and other interested parties in preparing this legislation. I am very ready to work with the Government, the Opposition and my crossbench colleagues to develop a Bill which can achieve the support of the Parliament.

It is time we put a real say back in the hands of residents.

Clifford's speech read: 

Mr Hayes (Southern Metropolitan) (14:04:25): I move: That this house calls on the government to give greater weight to the local planning policy framework by: (1) amending section 84B of the Planning and Environment Act 1987 so that the Victorian Civil and Administrative Tribunal (VCAT) is required to give effect to local planning policies, rather than just take planning schemes into account; (2) amending section 60 of the Planning and Environment Act 1987 so that VCAT 'must’ rather than 'may’ consider 'any strategic plan, policy statement, code or guideline which has been adopted by a minister, other government department, public authority or municipal council’; and (3) requiring the Minister for Planning to implement mandatory height controls rather than discretionary height controls when mandatory controls are sought, at the height requested by municipal councils in planning scheme amendments, either on an interim or a permanent basis. In the beginning cities had no planning or building laws at all. People built what they liked where they liked. The unsurprising consequence of this was that cities were blighted by slums, by poor sanitation, by poor water quality and by poor air quality. They were distinctly unhealthy places. Things were so bad that in 1917 Victoria conducted a royal commission on 'the housing conditions of the people in the metropolis and in the populous centres of the state’. A hundred years later we have high-rise buildings covered with cladding, making them a firetrap, and people living in cramped apartments without kitchens, with minimal open space and certainly with no car spaces. We have high-rise and multi‑unit development without vegetation, and our tree cover is in decline, threatening our native animals. With our suburbs turning into hot, congested, unaffordable, soulless battery cages and with homeless people wandering the streets, maybe it is time we had another royal commission into Melbourne’s housing conditions and planning. But I will return to that subject at another time. Back in 1917 the commissioners had submissions from the police force, ministers of religion, social workers, planners and landowners. The commissioners reported that there was overcrowding, poor housing conditions, a lack of affordable housing, poor infrastructure and poor services. It sounds a bit familiar. One of the more influential submissions was made on behalf of the Garden Cities and Town Planning Association of Great Britain. They proposed a town planning act for Victoria. Their submissions discussed the above problems of overcrowding, poor housing, lack of sunlight and community health. As an antidote, the garden city movement proposed new suburbs where blocks were subdivided for housing with a front and a back yard. Houses were kept to a certain height to avoid overshadowing and blocking sunlight to neighbouring houses—a matter of great concern to today’s residents also. The impact of the garden city movement can be seen in those suburbs built beyond the first line of inner suburbs like Carlton, South Melbourne, Fitzroy and Brunswick. Suburbs like Elsternwick, Malvern, Hawthorn, Pascoe Vale, Fawkner, Glenroy and similar suburbs were subdivided into quarter-acre blocks. Town planners moved away from the small crowded housing of the inner-city slums and adopted the garden city principle in designing the new subdivisions. It served Melbourne well. Melbourne’s title of the world’s most livable city owed a lot more to their efforts than it did to those of recent governments, who appear to have been doing everything they can to trash that legacy and make a farce of the title 'most livable’. I am sure there are people in this Parliament who disagree with me when I put forward the virtues of a detached house with a front and a back yard. They prefer high-rise. They like urban consolidation. They are, of course, absolutely entitled to that view, and there is room for a balance between the two. But what I am saying is that we listen to planners who responded to the needs of the community back then, and where there is disagreement, the way you resolve it in a democracy is by giving people a voice, a say. Let the people decide. Then for planning matters, let the local residents decide. It is their neighbourhood, it is their community and it is their environment. They are the ones who have to live there and take care of it. One of the most galling things about the push towards urban consolidation and the push towards rapid multi-unit and high-rise development—the move away from even flats, let alone houses with front yards and backyards—has been the way that local communities have been systematically robbed of any say in the decision-making on issues that affect them and their living environment very directly. In my view it is one of the drivers of the political alienation and unhappiness in the electorate that commentators constantly remark on these days. It is one of the drivers of the move away from the big parties, which ignore the concerns of local residents, which parties like Sustainable Australia are benefiting from. Sustainable Australia believes in the principle of subsidiarity—that decision-making should be as close to the people as possible and practical. In the case of planning decisions, this means having them made principally by local people through councils responsible to their local residents. Now, I accept at once that councils are not perfect, not by any means—in some cases far from it. I have been a councillor and a mayor myself and have worked with many councils. I am not starry-eyed or naive about them, but they are ultimately democratically accountable. Voters can get rid of councillors who are not reflecting their views or values. The same cannot be said for the Victorian Civil and Administrative Tribunal, known to all of us as VCAT, which the state government has given the authority to override councils. It does so constantly. Let me give the house a few examples from the daily litany of a body that runs rampant over public opinion. In McKinnon, at 242–250 McKinnon Road, the Glen Eira council proposed a height limit of four storeys after consulting the community. VCAT allowed the property developers to have six storeys. In Dudley Street, West Melbourne, the City of Melbourne rejected a 25-storey mixed-use development, arguing that the building exceeded local height limits and was insufficiently set back from Dudley Street. VCAT granted the application. At 9 Royal Avenue, Glen Huntly, Glen Eira City Council allowed a developer to have a four-storey building. The developers were not happy with that and went to VCAT seeking five storeys. VCAT gave them the five storeys, saying that it would only be two storeys taller than the prevailing local context of robust two-storey buildings with hipped roofs and that a four-storey building would be an inefficient use of the site. Really? At 322 New Street, Brighton, Bayside council refused a five-storey building, relying on a two-storey discretionary control which aimed at preserving the prevailing streetscape, rhythm, building scale and height. VCAT said that as such the policy does not lead to the conclusion that anything more than two storeys is unacceptable. It also said that the policy ignored making use of rare strategic sites to achieve broad housing and compact city objectives. In Moray Street, South Melbourne, Port Phillip council rejected an application for a 10-storey building on the grounds that it was inconsistent with the requirements of the design and development overlay. Although they acknowledged there were some mandatory requirements of the schedule, VCAT decided that it would be better to treat the relevant requirements as discretionary and granted the permit. Seriously! In Whitehorse Road, Blackburn, Whitehorse council rejected an application for four towers of 14, 10, 10 and eight storeys, saying that the height and scale of the application was excessive given its location within the Blackburn neighbourhood centre—not even a major activity centre—with a preferred maximum height of 21 metres. That is six or seven storeys. However, VCAT knows what the real plan is: Plan Melbourne. That is the plan. They referred to it, saying it indicates that Melbourne’s population over the next 30 years will require significant housing growth and that this growth is to be directed to established areas near services, jobs and public transport. Needless to say, VCAT overruled the council and allowed the four towers. In each of these cases local policy has been overlooked or overruled. There are a dozen more where these came from, but I hope I have made my point. VCAT is a planning scheme approval system, and here I quote from the conclusion of a study by the Australian Cities Research Network, Spinning the Wheel: Examining Decision Making Process and Outcomes in Development Assessment, by Brendan McRae and Joe Hurley from RMIT in 2013: In Victoria, the current system of planning permit appeal is no longer acting as an avenue to resolve a small portion of intractable disputes. Rather, in cases determined at Council meetings, it would seem that VCAT is providing a default 'second round’ hearing, with significantly different outcomes to local Councils. This raises questions about the role of planning officers, elected officials, and VCAT in the assessment of development applications. VCAT is clearly not acting merely to correct 'mistakes’ made at the local level. Further, given propensity at which planning officer recommendations are overturned, VCAT is going beyond providing oversight on the political influence of councillors. With developers seeking the least cost and risk in development assessment, they are now increasingly factoring in an appeal to VCAT. This undermines the role of local government planning officers and elected Councils in mediating the development assessment process, which in turn limits the potential for locally situated development outcomes. As a result, VCAT is becoming the default planning assessment forum for significant development in existing urban areas. I hope the house can see from this litany that we have a fundamental problem with planning in Victoria. What we have is a top-down planning scheme. We have a minister with all the powers of a medieval king, and the so-called responsible authorities—the councils—are now neither authorities nor are they responsible. Residents blame the councils. Often they do not know that councils in reality have no power to reject excessive developments. If councils try to refuse them, the developer goes to VCAT and has them approved there. This is now the expected path for any larger scale development. As a result council planners and even councillors in planning meetings will say, 'We had better go along with this, because if we don’t, the applicant will simply appeal to VCAT and will win there’. They should not be put in the position of second-guessing VCAT like this. When they do, they are not being responsible in the true sense of the word, and they are no longer the authority either. VCAT is the real authority. Furthermore, the decisions that VCAT makes are used as precedents by developers for the further erosion of council and community plans for various neighbourhoods. Our planning minister is the King of Planning. He decides what is allowed to become planning law. He—at his discretion, on the advice of his powerful department—disallows many planning scheme amendments which have been sought by councils after considerable time, effort and money and community consultation. He disallows them, which makes it harder for councils to make policy. We get greater density, more height, less setback, less vegetation and less habitat for wildlife, and our much-valued heritage is destroyed. The minister often changes council requests for mandatory controls to discretionary controls. This is allegedly to provide greater flexibility. In reality this flexibility gives power to VCAT at the expense of local residents. VCAT allows buildings with greater height or lesser setback than has been planned by the council in their policy and sought from the minister by way of planning scheme amendment. This is the most important reason to give councils mandatory controls as requested. Of course the underlying thing driving this wholesale trampling of democracy, this crowding of people into suburbs against the wishes of the very people who live there, is Melbourne’s rapid population growth. Some of our opponents say that it is racist to oppose the current elevated migration levels which give effect to this plan for rapid population growth. Are those who make this claim aware that in 1996, barely 20 years ago, when the Howard government was elected, the Victorian government Department of Infrastructure did an extensive report setting out population projections for Victoria for the next 25 years? They estimated that Victoria’s population would grow on average by just 30 000 to 40 000 per year in Victoria. Was it considered racist back in 1996 to have a lower migration intake than the current 200 000-plus? We are now growing Melbourne by 129 000 people per year. Infrastructure required for a city with a population the size of Ballarat or Darwin must be built in Melbourne to accommodate such growth every year. We will never catch up on the infrastructure gap if we continue at this rate. The department predicted Melbourne’s population would be 3.8 million in 2021—that is back in 1996. In fact Melbourne passed 4 million in 2010, 10 years ahead of schedule. Melbourne 2030 predicted Melbourne to reach 5 million by 2030. We exceeded that figure in 2017, 13 years ahead of schedule. Some people think that planning arguments are just about appearances, merely about what a street looks like. In reality planning is about so much more than that. The 1917 housing royal commission was mainly about making our suburbs healthier places to live, and allowing recreation and vegetation which occurs in backyards did precisely that. If anything the physical and mental health importance of proper planning is even greater today than it was 100 years ago. In 2013 the State of Australian Cities report found that people living in cities were more susceptible, firstly, to the effect of heatwaves. It identified heat islands caused by the prevalence in cities of heat-absorbing materials, such as dark-coloured pavements and concrete coverage, buildings creating urban canyons which trap hot air, and a lack of shade and green space in dense urban environments. Lately, councils have done more work on this, mapping the heat temperatures in their areas. It has been shown that areas where trees and gardens are disappearing and being replaced with concrete as glowing red now with heat. Of the nation’s capitals, the report estimated that Melbourne had the highest annual number of heat-related deaths—about 200 a year. Just for the record, the 2013 road toll was 242, and we put tremendous effort into tackling that road toll. What about heat-related deaths? The report estimated that the number of heat-related deaths in Melbourne is expected to more than double by 2030. Obesity is now the leading cause of premature death and illness, overtaking smoking. Research, however, shows that being near nature can be a remedy to obesity. According to Gilbert Liu, MD, a study of over 3800 inner-city children revealed that living in areas with green space has a long-term positive impact on children’s weight and thus health. In fact the greener the neighbourhood, the lower the body mass index. We have to get our children living and playing outdoors again. In the Medical Journal of Australia in 2010, Dr Deborah Pelser said that increasing urbanisation was linked to higher rates of obesity, asthma, depression and schizophrenia. Heart disease, diabetes, asthma and migraine are less prevalent amongst those with more green open space available. But we are moving in the wrong direction, allowing enforced urban consolidation to eat up public and private open space and with it vegetation and habitat. Back in 2010 the Victorian Environmental Assessment Council reported that open space per capita would halve by 2026 in growth municipalities like Cardinia, Hume and Whittlesea. Open space is also in decline in areas which have the least. The cities of Glen Eira, Stonnington and Boroondara in my electorate have three of the four lowest open-space hectares per thousand people in Victoria. All are seeing a decline in their open space per capita. Councils are the bodies which usually try to preserve open space and vegetation in their planning schemes, the very issues that VCAT is not required to consider, let alone implement. We are often told that high-rise buildings are the way to give us housing affordability. If that is their purpose, they have failed miserably. Young people have never been further away from owning their own home. But Professor Bill Randolph, from the University of New South Wales and director of their City Futures Research Centre, nailed what is really going on. In an article in The Conversation in 2017, Professor Randolph noted that although apartments now account for 28 per cent of housing in Sydney and 15 per cent in Melbourne, the growth in apartments has been largely about benefiting developers and investors, not those seeking to buy their own home. He also pointed out that in Melbourne space and design standards, including site cramming and windowless bedrooms—windowless bedrooms—have come under scrutiny. He noted that tall apartment blocks stand cheek by jowl in overdeveloped city precincts. Planning issues, including design standards, are more likely to be tackled in local planning schemes and should be given proper emphasis. Mr Randolph described the lack of consumer protection in this market as astounding. He said: The average toaster comes with more consumer protection—at least you can get your money back if the product fails. Of course the ongoing flammable cladding debacle and emerging structural faults show how right he is about this. I will have more to say in future about that one and the role of the now extinct municipal building inspector. Mr Randolph said that far from being bastions of gentrification, large multi-unit buildings in less prestigious locations will drift slowly but surely into the lower reaches of the private rental market. He predicted concentrations of lower income households in the suburbs on a scale previously seen only in inner city high-rise public housing estates. He called them 'vertical slums in the making’. 'Well, it’s not that bad here’, some will say. Really? In 2014 it was reported that in the CBD windowless bedrooms exist in almost a quarter of new residential developments. A Melbourne City Council study estimated that more than half of the city’s tallest apartment buildings over 15 storeys were of poor quality. Common failings included kitchens in hallways, poor storage, lack of ventilation and excessive energy use. How many of these, I ask, were approved by VCAT against local council policies? So what needs to change? In our view, it is not complicated—two words: local democracy. Give the local residents the power in relation to planning. The Planning and Environment Act 1987 is supposed to establish a framework for planning the use, development and protection of land in Victoria in the present and long-term interests of all Victorians. The act enables our councils to develop planning policies—strategies—and to implement planning controls—zones and overlays. These policies are created through rigorous local community engagement and independent analysis to develop a framework which will protect the interests of our cities. But section 60(1) of the act, which sets out the matters that must be considered by the responsible authority, including VCAT, does not include the strategic planning policies developed by councils. Instead these important policies are relegated to the category of policies that may be considered by VCAT. We should amend section 60 so that VCAT must be required to take properly gazetted and adopted policies, including local council policies, into account. These policies are not just whims; these policies also, as I said, must be adopted. They must have passed the minister’s perusal at some stage, so they are approved council policies. We need also to strengthen section 84B of the Planning and Environment Act, so that VCAT is required to give effect to such local planning policies expressed in the local planning policy framework—part of the state’s planning scheme but part of the local provisions of the planning scheme—rather than just take planning schemes into account. And the Minister for Planning should be required to accept council proposals for mandatory height limits, rather than arbitrarily raise the limits or make them discretionary and therefore worthless, as he does at present. The Inner South Metropolitan Mayors Forum in my electorate has supported the strengthening of height controls in the planning scheme. It is calling for mandatory maximum height controls—this is a conservative body of inner south councils—as a legitimate planning tool. It also recommends that where discretionary controls are implemented there should be clearer guidance for the exercise of discretion, rather than the present situation where applicants come in with applications that are double the height of a discretionary limit. It notes that these discretionary limits are often seen as a starting point rather than a control. Boroondara and Glen Eira councils are also advocating that the act be strengthened to give greater weight to the council’s local planning policy framework in both decision-making and development approval. Their mayors respectively, Jane Addis and Jamie Hyams, have supported this motion. Changes favouring local planning have been done elsewhere. In Ottawa last year, the Ontario Municipal Board, which had been heavily criticised by the community for being too developer-friendly, was replaced. The Ontario Municipal Board, like VCAT, would hear arguments from both sides and decide what it thought was the best planning outcome, more often than not overruling the decisions of local councils. The replacement body, the Local Planning Appeal Tribunal, will now answer a simple yes or no legal test: has the council been following its own policy and rules? If it has not, the matter goes back to council for reconsideration. The tribunal will not be able to substitute its own decision the way VCAT does here and the way the Ontario Municipal Board used to. Decisions will be written in plain language and made public. This is the model we would really like to use to reform VCAT, but for now we are aiming here for a much more modest outcome, by trying to tilt the present imbalance in VCAT decisions towards local democracy. I call on this house to support giving people a say in something that has real impact on their lives: the character of the street, the suburb and the municipality in which they live. The progressive erosion of people’s rights in planning matters has been soul-destroying for those who get caught up in these unequal David and Goliath struggles. It is one of the things driving voter alienation, driving cynicism about politics and political leaders and driving voters away from the major parties. You might think you have got away with it, but it has not gone unnoticed. I urge you to support this motion, and I indicate that I am ready to sit down at any time with any interested member of this house to discuss planning reform—not more planning deregulation, not more power for property developers, but real planning reform, which is an idea whose time has well and truly come.