Victorian planning law reform in a time of controversy

How would you feel about Victoria’s planning minister having even greater power and decision-making discretion over controversial projects?

Minister Justin Madden has been no stranger to power and controversy lately, as was evident in his approval of the Windsor Hotel development despite the questionable political strategies involved. His approval of the Mallacoota boat ramp last year, contrary to expert recommendations, also raised questions from the community about his use of discretion. Yet the Minister’s Department has proposed changes to Victoria’s planning laws to give him even greater discretion and power.

The proposed changes are presented as a way of ‘modernising’ the Victorian Planning and Environment Act 1987 and to equip the legal system with techniques to deal with the State’s unnerving fascination with growth and expansion.

Yet under the draft Planning and Environment Amendment (General) Bill – which was released in December last year for a summer-time public review – the most significant changes vest control in the hands of the Minister and get developers to run part of the planning process themselves. A modern planning system appears to be one with less community input and a reduced role for local councils.

Parts of the proposed bill are commendable. It is good to see some recasting of the Act in light of contemporary expectations of planning, creating a quick assessment process for non-controversial small developments, and dealing with planning agreements more fairly, locally and promptly. But other parts, while well intentioned and theoretically sound, ought to be reconsidered to protect Victoria from a New South Wales-styled planning regime. We do not want a scenario where local councils can become havens of corruption and ministers regularly exempt projects from planning requirements without transparency and consistency, rather on the apparent demand of their favoured developers.

There are three parts of the proposed bill that are concerning.

First, the bill proposes Victoria adopt a State significant project process. This model provides for controversial, large and important projects to get assessed thoroughly and in public, and then approved or rejected by the Minister (rather than the local council). As a trade off for going through a more participatory and rigorous planning process, any developer will be protected from legal challenges. The Victorian Civil and Administrative Tribunal (VCAT) becomes off-limits to project opponents.

While this may sound reasonable and fair, the problem is that the Minister will have the power and discretion to unilaterally declare a project to be of State significance. Even more alarming, the Minister will then have the power to exempt much of the project from the usual assessment process. The possibility, just as has occurred in NSW, is that the Minister will nominate questionable projects as being significant, and then let them bypass the planning system altogether, with the community unable to seek review at VCAT. There will be no need for tricky political fixes in a modern planning system – it would all be legal.

The Department has attempted to reassure us that the Minister would normally only use these powers of exemption for preliminary works (similar to trial dredging for the Channel Deepening Project and groundwork for the Wonthaggi desalination plant). However, the proposed bill has no effective limit on these proposed new Ministerial powers.

Second, the proposed bill gives the Minister a power to unilaterally and secretly change any planning scheme. This is unlike the current usual process of notice, public review, and local council consultation. Again, while the Department argues that these new provision will be used for inconsequential changes, we must need to wait to see the regulations before discovering how wide the Ministerial discretion is.

Third, the proposed bill suggests further changes to the usual planning scheme amendment process. Rather than local councils and officials preparing amendments and running the process, a modern planning system foreshadows these functions being done by the developer. Under new planning laws, a developer could be given responsibility to prepare amendment documents and run the consultation for a project, including considering and responding to community opposition. Relationships between local councils and developers will likely become more ambiguous.

For all its good, the proposed bill will further dilute planning laws in order to provide project-specific exemptions. Planning seems not to have a place in modernity. Most disturbingly, though, the proposed bill will further entrench power and discretion where it has recently been most mishandled: in the office of the Minister for Planning.