Tuesday 16/10/12 Felicity Millner, Herald Sun Law Blog
Opinion: Good planning should be based on community consultation, expert advice, accountability and transparency.
Last Thursday, Minister for Planning, Matthew Guy MP, made a last-minute, political decision to avoid proper planning processes that is completely contrary to principles of good planning.
The Minister amended the Glenelg Planning Scheme to allow development of 10 houses and a subdivision in Narrawong, on the South-west coast of Victoria, without a planning permit.
The decision was made 2 business days before a hearing in the Victorian Civil and Administrative Tribunal, testing his decision to approve these developments, was due to commence.
The planning scheme amendments have effectively removed the ability of VCAT to turn its independent, expert eye to reviewing the Minister’s decision.
The Minister has publicly stated that he amended the Planning Scheme to avoid the VCAT hearing in order to fulfill an election promise, stating on ABC Radio “The Government is doing what it said it would do.”
The sites that were to be the subject of the VCAT hearing are on a primary dune.
Expert evidence filed in VCAT stated that the houses that are proposed to be built are likely to be washed into the sea in a couple of decades' time, as a result of coastal erosion and climate change.
At the hearing, there were going to be arguments about whether the developments would be inconsistent with Victorian’s Coastal Strategy, a important planning document developed over several years, based on expert input and community consultation, and designed to guide responsible coastal development.
Planners like to talk about “fair and orderly” planning.
The effect of the Minister’s decision is anything but fair and orderly.
His decision effectively privileges a handful of sites over hundreds of other sites on vulnerable coastal land which have to have comply with Victoria’s Coastal Strategy.
The decision has left members of the local Narrawong community feeling robbed of their right to have their day in VCAT, where their arguments for protection of the environment and cultural heritage could be heard.
Decisions like the one the Minister made, that avoid accountability, favour a few and undermine opportunities for public participation in planning decisions, erode public confidence in the planning process.
This should be a concern to all of us who value our natural and built environments.
The Minister ought not be above the law. One of the problems with Victoria’s planning laws is that it allows Planning Ministers to call in planning decisions, with limited restriction as to when this power can be exercised.
It also allows Planning Ministers to amend planning schemes without having to give notice or consult with the community, again with few limitations on when and how the Minister can exercise these powers. Cases like this one show why this needs to be fixed.
The current planning Minister has used these powers recently to rezone land farming land to residential land on Phillip Island, in a manner that went against the wishes of the local community and the work done by the local council to determine the best outcomes for the site.
Media later reported that this was done following a request from someone within the Liberal Party. This matter is currently before the Supreme Court.
The former Planning Minister Justin Madden was also heavily criticised for abusing his discretionary powers and not having due regard to the proper planning processes, including by the current planning minister himself.
Following the Hotel Windsor affair, which revealed that Justin Madden had no intention of taking into account comments received through public consultation, Guy condemned Madden’s behaviour as “destroy(ing) the independence of the planning process.”
Years of work, done to enable sensible, forward-looking planning decisions to be made to deal with the threat of climate change, have been bypassed in this case.
The VCAT hearing would have applied scrutiny to whether the Minister has followed these principles.
By changing the rules at the last minute he has avoided the very planning system he is supposed to be administering in the broader public interest.
Felicity Millner is the principal solicitor for the Environmental Defenders Office