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Holdfast Bay's submission to the planning review
Read Holdfast Bay's submission to the Planning System Implementation Review, which is an independent review of the State Government's Planning, Development and Infrastructure Act.
Dear Expert Panel
Thank you for the opportunity to make a submission to the Planning System Implementation Review (the Review). The City of Holdfast Bay’s submission reiterates the response prepared on behalf of councils by the Local Government Association, adopting its platform for restoring community engagement in the planning process, returning planning powers to local government for greater autonomy in shaping their communities, and enhancing protections to the natural environment and built heritage. Specifically, the City of Holdfast Bay recommends amendments to the current planning system that enables:
- A well-informed community who can genuinely engage with the planning system.
- A Planning and Design Code that enables the development of localised policy.
- Good design outcomes informed by changes to the Planning and Design Code managed by local councils with direct input from its community.
- Increased regulated and significant tree protection that recognises the importance of these trees and discourages removal through significant penalties.
- Greater protection to established suburban character and heritage buildings.
- Removal of the financial burden of administering and implementing the planning system removed from local government and their communities.
- Empowering individual councils to establish localised land use policy, rather than the current system where unilateral policies are applied through the statewide Planning and Design Code.
- Provision of greater opportunity to provide for a more localised and nuanced policy to preserve and enhance local character.
- Provision of a planning system where the community’s understanding and usage of the system is improved.
The City of Holdfast Bay is committed to working together with its community and State Government agencies towards the common goal of an improved planning system for South Australia that delivers better outcomes for all. Whilst council is committed to the new planning system as a means to provide an efficient level of service to the community and the development industry, it is concerned that the expediency required by the system has come at the cost of quality in decision-making. In this regard, the City of Holdfast Bay believes that the implementation of the planning system and the adoption of the Planning and Design Code will only be successful through an inclusive partnership between local government, its communities and State Government, with reasonable targets and inclusive outcomes.
The new planning system has resulted in a loss of community voice and local knowledge in its decision-making process. Some of the key observations made by Council’s elected members, the city’s constituents, and those who administer planning policies on the community’s behalf, are that the following measures need to be adopted to restore the community’s involvement and faith in the planning system, and to ensure that decision making with respect to important planning applications and land use policy changes occur at the local level:
- Developing a successful planning system depends on the State Government’s commitment to ensuring full participation of councils and communities in decision making. The State government should work with councils to maximise the local benefits of planning processes, strategies and policies.
- Restore the three tiers of public consultation for planning applications, enabling a greater number of residents to be actively engaged in the planning process, with third-party appeal rights reintroduced for residents to have the opportunity for an independent review of planning decisions that affect their neighbourhood.
- Reintroduction of the balance between elected member and independent member representation on Council Assessment Panels to ensure that the aspirations and expectations of constituents are represented with respect to major planning decisions.
- Restoring the role of local government as the primary authority for planning decisions and land use policy changes, with such responsibilities for statutory and strategic functions clearly defined within the legislation.
- Re-establishing local autonomy as a means to promote the interests of local communities, and to ensure consistent and transparent planning decisions.
- Re-empowering local government to amend and develop localised planning policy, particularly in terms of identifying and protecting areas of built heritage and suburban character.
- Revisiting the regulated tree legislation to reinstate protections once afforded to trees of significant size, irrespective of their relative location to dwellings and swimming pools. It is incongruous to have targets for increasing the urban tree canopy when current laws allow the removal of trees that make the greatest contribution.
More specifically, there are a number of functions associated with the current planning system that are viewed as problematic for the City of Holdfast Bay. These relate to both the functionality of the planning system and the urban outcomes associated with the implementation of the land use policies. The following section breaks down the various parts of the planning system, their respective shortcomings, and recommendations for improvement.
Funding the new Planning System
- The City of Holdfast Bay supports its role as a local decision-making authority and considers that this role should be properly funded by fees and charges set at a cost recovery level. The City of Holdfast Bay opposes any reforms that result in a more unfavourable financial position in relation to planning functions. The fee discrepancy is exacerbated by the fact that the City of Holdfast Bay has had to expend funds to challenge inadequate planning outcomes caused by the narrow and exclusive assessment pathways presently offered.
- The City of Holdfast Bay considers that the costs of the ePlanning system and the SA Planning Portal have been shifted inequitably onto councils. The City of Holdfast Bay is required to pay a levy in excess of $60,000 each year to maintain a planning portal controlled by the State Government to which the broader community has limited access to. Furthermore, councils must forego lodgement fees to the State Government, being fees that were previously payable to councils.
- The City of Holdfast Bay recommends that lodgement fees are returned to councils and that audited accounts of the levy expenditure are provided to local government as a means to understand how those funds are expended, particularly now that the ePlanning system has been established and only requires maintenance support.
- Infill development within Holdfast Bay is placing increasing pressure on existing council infrastructure. Furthermore, as a downstream council, the City of Holdfast Bay is required to manage the stormwater flows and discharge created by unabated infill in neighbouring council areas. Councils need the ability to seek a development contribution to be charged against new development that requires upgrade of council infrastructure to support the proper servicing of the intended development proposal. Developer contributions are a fair and viable means of raising revenue to improve local infrastructure and assets. Mechanisms by which developer contributions can be regulated and applied to address the pressures on existing infrastructure should be considered in the Planning, Development and Infrastructure Act 2016.
- Building sustainable densities is an important aspect to healthy and vibrant communities. The current policy on cumulative impacts of infill development should be reviewed and monitored with appropriate targets and controls established and enhanced policy relating to infill development to address issues such as loss of character, carparking, the loss of private open space and the urban tree canopy.
Heritage and Conservation
- Local government recognises the benefits of protecting its built heritage while emphasising that classification of ‘heritage’ and ‘conservation’ status should be made locally, on the basis of evidence. The City of Holdfast Bay does not support the implementation of policies that lack a sufficiently robust evidence base for the removal of heritage protection status to listed properties, for instance.
Principles of Good Design
- Planning decisions should be made cognisant of good design principles and in the best interests of the local community. Further consideration of good design within the Planning and Design Code for all forms of development is required. An appropriate start would be to dismantle the generic design standards that are imposed metropolitan-wide, as this approach fails to consider and articulate individual suburban character that is worthy of noting and replicating in all new development.
Areas of Cultural and Spiritual Values
- Protecting areas of cultural and spiritual value is a shared responsibility of all tiers of government and communities. Further work is required to include policies within the Planning and Design Code that consider non-European cultural and spiritual values.
Urban Greening, Tree Planting and Offset Fund
- The City of Holdfast Bay understands that having higher levels of natural plant life (trees and shrubs located in street verges, parks and on private properties) in their local communities has many social and environmental benefits, particularly in urban communities. Indeed, the City of Holdfast Bay has a proud and ongoing commitment to revegetating its coastal and natural reserves, in addition to implementing an intensive street tree planting program that will restore tree canopies and corridors to the urban environment. However, these attempts at revegetation are exponentially offset by State Government policies that enable the unabated removal of the city’s most significant trees. This is such an issue of concern to the Holdfast Bay community that a separate paper is provided as an appendix to this submission containing specific concerns and recommendations to help guide rapidly needed reform.
- To achieve the Tree Canopy Cover Target in the Greater Adelaide 30 Year Plan there is a need to understand that to reduce the heat island effect arising from the increased paved areas and effects of climate change that there is a need for a consistent canopy cover. This can only be achieved by trees being planted on both public land (reserves, open space and streets) and private land. To reduce the heat island effect in the higher density infill areas there is a need to ensure that trees are planted on private land.
- The City of Holdfast Bay recommends that the cost of paying into the Tree Offset Fund in lieu of planting a tree should be commensurate with the full life cost of the tree, notwithstanding the benefit the community will receive.
Having regard to the abovementioned issues, the following technical amendments to the Planning, Development and Infrastructure Act 2016 (PDI Act) and associated regulations, and the Planning and Design Code are recommended by the City of Holdfast Bay:
- Amend the regulated and significant tree legislation with the aim to protect regulated and significant trees. This would include expanding the definition, determining a value for trees and including a fee when a regulated or significant tree is to be removed and increased penalties for the illegal removal or damage to these trees.
- S56, Fees and Charges: the requirement for councils to pay the ePlanning levy should be repealed. Councils have had to forego lodgement fees to sustain the ePlanning platform, and to seek an additional levy is entirely inappropriate, particularly as the high level of investment by local government does not translate in quality of product or service provided.
- Sub-section 67(4) and (5) should be repealed to ensure that planning policy is determined by proper planning principles through broad community consultation, rather than through a selective vote of property owners.
- S106.2 and Regulation 54(1), Deemed to Satisfy (Minor variations): the ability of Private Certifiers to make minor variations to applications should be repealed or at the very least provide greater guidance and controls on what are minor variations.
- S121(2) Design Review, a person undertaking specified forms of development should be required to undertake design review, rather than being a voluntary process.
- S125 Timeframes in which to make a decision: sub-section 2 Deemed Consents should be repealed.
- Regulation 125, Timeframes within which a decision must be made: more flexible timeframes for complex applications that are not subject to public notification should be introduced.
- Public notification provisions should be reviewed, with more targeted public notification provided and third-party appeal rights introduced for identified forms of performance assessed applications assessed by Assessment Panels and subject to public notification.
- S136, 137, Regulation 3F and definitions relating to Regulated and Significant Trees: an independent review of the regulated and significant tree legislation should be undertaken with the aim to increase protection of regulated and significant trees, this would include expanding the definition. A value for trees should be determined and regulated and included as a fee when a regulated or significant tree is to be removed.
- Planning and Development Fund: amend S194 and 195 and Regulation 119 to ensure that the fund is only used to improve access to public open spaces and places and enable the planning, design and delivery of quality public space that is essential to healthy, liveable communities.
- S197 Off-setting contributions: the operation and applicability of the Urban Tree Off Set Scheme should be reviewed and the contribution for not planting a tree under the Urban Tree Off Set Scheme should be substantially increased to provide an incentive to plant trees on private land and to enable councils to recover the cost of planning and maintaining the trees on public land.
- Include mechanisms by which developer contributions can be regulated and applied to address the pressures on existing local infrastructure.
- A comprehensive review of fees and charges should be undertaken with consideration being given to the lodgement fee currently being paid to the State Government being paid to the council and consideration should be given to a verification and development approval fee.
- Include the ODASA Design Guidelines into the Planning and Design Code – Principles should be incorporated in the Planning and Design Code to ensure that Object 4(d) and S59 of the Act are fully addressed and incorporated within the Code.
- Reintroduce detailed Desired Character Statements for zones to provide clarity in relation to outcomes sought.
- Enable councils the opportunity to include more localised policy within the Planning and Design Code to reflect local neighbourhoods and local character.
- Undertake a comprehensive independent review of the benefits and impacts of infill development in metropolitan Adelaide and amend the Code based on the findings.
- Provide greater policy consideration and detail for regional South Australia in the Code.
- Engage with local government on the provisions of policy and design guidelines required to protect heritage and character areas.
- Ensure policy is well written and understood and the language used is not ambiguous and non-contradictory and enables clear outcomes.
To assist the Expert Panel in understanding the challenges faced by the City of Holdfast Bay in administering a planning system where the involvement of councils is limited with respect to shaping policies, engaging with their communities on development applications, and indeed making assessments on merit, it is important to expand on some of the fundamental issues that require revision, with specific recommendations to achieve better outcomes.
Loss of Policy Direction
The City of Holdfast Bay has noticed that the opportunity to develop and improve on land use policy has been lost with the introduction of a single Code that is managed centrally through Planning and Land Use Services and the State Planning Commission. Under the previous system, the City of Holdfast Bay had the opportunity to be innovative through developing and testing policy in its local area, for its own local community. While this previous approach had drawn a negative response from the development industry due to varying policy across council areas, it led to innovation and ongoing improvement in policy content. While some see value in the new centralised approach which has created ‘homogenous’ policy across suburban Adelaide, it has stifled innovation and reduced policy content to the lowest common denominator.
a) Councils should be provided the ability to develop and test policy at a local scale, or at the very least adapt policies to suit their own local circumstances.
b) State Planning Commission to provide more detailed and comprehensive feedback on issues raised by councils and provide a clear framework and understanding on how policy issues raised by councils can be addressed.
c) Introduce greater transparency to the otherwise confidential nature of many of the State Planning Commissions discussions, as a means to instill confidence in the system and increase the ability of councils and the community to be engaged in policy development.
The Loss of Local Policy Content
The State Government, in the early stages of development, communicated that the Code would be comprised of current Development Plan policies in the new Code format, in effect a “like for like” transition to precede future changes to policy content developed in consultation with councils.
The Code in its current form does not uphold that commitment. Policy intent, content and tools fundamental to councils’ ability to sustain and enhance the quality of suburbs and neighbourhoods from existing Development Plans, have not been replaced with substantive planning policy of a level of detail or rigor necessary to enable good development outcomes. Attention is drawn to a specific example in Holdfast Bay, where allotment densities and site frontages were reduced by up to 30% without any reciprocal policies relating to retention of the urban tree canopy, management of on-street car parking congestion, disposal of stormwater from increased hard-surface areas, and reduction in the number of on-street car parking opportunities through the increase in the number of driveway crossovers.
The Code omits local policy that had been developed by the City of Holdfast Bay in consultation with its community over considerable time and at considerable expense. The State-based approach as adopted in the Code has seen the removal of both this local policy, and in many instances, Structure Plans and Master Plans specifically developed for local and unique areas. Inclusion of these local area plans was supported by the Expert Panel in its original recommendations for Planning Reform.
Perhaps the starkest example of where Ministerial land use policy has failed local communities is represented by the arbitrary allowance for high-rise development in some of Holdfast Bay’s most sensitive localities. The State Government saw fit in 2016 to repeal previous local policies created with community input, in favour of generic high rise policies that had no regard pre-existing local traffic conditions, architectural character, capacity of existing stormwater infrastructure, importance of heritage listed buildings, and the social welfare of those residing adjacent. With the advent of such developments along South Esplanade, Colley Terrace, and Adelphi Terrace (in particular), it is critical that an evaluation of the impacts of such developments is undertaken to understand the ramifications of continuing with these policies, relative to the benefits of re-introducing local content to guide development policy.
a) Councils should be empowered to develop local policy, including Structure Plans and Master Plans specifically for local and unique areas, and in consultation with their community.
b) The City of Holdfast Bay seeks a review into the current building height allowances along South Esplanade, Colley Terrace, and Adelphi Terrace to understand the environmental, social, heritage, and built form impact to surrounding residential communities.
A key premise behind the South Australian Planning Reforms and as identified in the PDI Act and State Planning Policies, is the focus on good design outcomes under the Code. Good design and placemaking must be a central objective of the Code and must be enforceable in the assessment process.
The importance of design to good planning outcomes has been emphasised throughout the reform process. While the intent to promote good design is clear, this is not fully realised in the Code, which is the most practical and effective instrument available to realise the intent of the PDI Act. As the Code currently stands, these good intentions have not been met. The reduction of the number of zones overall, and stripping away of well developed, locally responsive policy guidance, has resulted in standardised policy across many neighbourhoods and suburbs which fails to recognise and respect unique character.
The City of Holdfast Bay and its community have an expectation that the Code will significantly lift the bar in terms of the quality of design outcomes being achieved through the planning system. Therefore, good design and placemaking must be a central objective of the Code and must be enforceable in the assessment process. Good housing and urban design should not be considered as an add-on, but as an essential part of an acceptable living environment.
a) Introduce measures that allow councils to expand on the choice of generic zones which they are otherwise limited to, as a means to develop land use policies that meet the specific design needs of the particular locality and areas of character.
The City of Holdfast Bay recognises that building sustainable densities is key to healthy and vibrant communities, however current policy should be reviewed to gain a greater understanding on cumulative impacts of infill development particularly as it related to the loss of local character, the loss of the urban tree canopy, car parking, stormwater and other council-managed infrastructure and both public and private open space.
While the Code accommodates continued infill development in the metropolitan area, the design, impacts and management of infill development should be addressed more thoroughly in the Code, ideally with the guidance of a broader strategy. In the Code, infill development should be considered together with particular regard to policies addressing design, neighbourhood character, and local context.
While there is some recognition of these issues in the State Planning Policies, there is no holistic policy to guide the land use planning and funding settings specific to infill development in urban areas. This policy vacuum contributes to disjointed decision making within the planning system about the intensity of development permitted within an area, and the capacity of that area to accommodate high levels of infill development.
A better understanding is needed of the cumulative impacts of the current policies that encourage infill development, whether the areas that are identified for further infill development have the service and infrastructure capacity to sustain further development, the level of investment that is funded. These issues should be thoroughly considered and clearly articulated in a State Planning Policy on Infill Development.
a) A State Planning Policy relating to infill should be developed to address the loss of local character, the loss of the urban tree canopy, carparking, stormwater and other council-managed infrastructure and both public and private open space.
Heritage and Conservation
Conservation of heritage and historic character through the planning system remains a vital concern for the City of Holdfast Bay community. The City of Holdfast Bay reiterates its earlier comments to the State Government that highly effective heritage conservation policies existed in the now repealed Development Plan, and that these should be reintroduced into the Code and indeed expanded rather than lost through the planning reform program. As matters stand, the Code provides generic heritage and conservation policies, which are oblivious to the distinctly unique character areas within Holdfast Bay. There needs to be a finer grained approach to heritage conservation to ensure that the unique features of a particular area are not lost but in fact enhanced.
Previous Historic Conservation Zones (HCZ) and Contributory Items (CI) were highly valued by the Holdfast Bay community, including identification of certain places as Contributory Items. While the City of Holdfast Bay reluctantly supported the decision to transition many of the existing Contributory Items into the Code as ‘representative buildings’ as a means to afford some level of protection to these important places, concern has been expressed that these ‘representative buildings’ are not defined in the Code. Indeed, the City of Holdfast Bay had to prepare a Code Amendment to ensure that 27 of its most valuable Contributory Items were elevated to Local Heritage status for their own protection.
The interface of development assessment and heritage is particularly significant in the context of State Government directions for urban development. The City of Holdfast Bay believes that urban infill development can be compatible with heritage conservation, and with good design offers opportunities for improving streetscapes and areas in ways that can benefit local heritage places and incentivise their restoration and use. Conversely, such development also has the potential to impact negatively on local heritage, and clear policies and frameworks for decision making are required where heritage conservation must be considered alongside other objectives in pursuit of infill targets.
While it is understood that the Code seeks to provide for flexibility of design response for development that impacts on heritage places, the loss of detailed development guidance, otherwise previously available in council Development Plans, has the potential to result in more development proposals that fail to have appropriate regard to heritage significance and value. Without repeating in whole past submissions made to the State Government on the issue of heritage protection, the City of Holdfast Bay reinforces its support for the following recommendations made in the 2018-19 Inquiry into Heritage Reform of the Environment, Resources and Development Committee of Parliament:
- State Government commences a statewide, collaborative and strategic approach to heritage reform through development of a staged process and that any reforms undertaken must result in streamlined, clear and responsive processes and transparent and accountable decision making;
- A statewide, strategic approach to identifying heritage of local and state significance, involving the community and interested stakeholders, which is appropriately funded by State Government;
- An audit or review be undertaken of local and state heritage places and contributory items, with the aim of working collaboratively with community and local government;
- A suitable long-term funding base (that incentivises management for heritage and disincentivises deliberate neglect of heritage) for the management of heritage be identified and secured; and
- Sub-section 67(4) and (5) of the Planning, Development and Infrastructure Act 2016 should be repealed in order to ensure that planning policy is determined by proper planning principles through broad community consultation, rather than through a selective vote of property owners.
The City of Holdfast Bay was pleased to receive notice from the State Planning Commissioner on 19 October 2022 that opportunities had been unlocked to wind back some of the current measures, restoring autonomy to councils to elevate Character Areas to Historic Areas, and providing support and facilitate councils to review and update their Character Area Statements (and Historic Area Statements) to address identified gaps or deficiencies, and support and facilitate councils to undertake Code Amendments to elevate existing Character Areas to Historic Areas. However, it is important that such measures are reflected by changes to Section 67 (4) and (5) of the Act, which requires a plebiscite of property owners where a heritage character or preservation zone or sub zone is proposed. The Act requires that 51% of property owners agree with the proposal. The City of Holdfast Bay opposes this provision on the basis that the recognition of heritage character should be based on the merits and character of the built form, not on a popular vote. The requirement for 51% of property owners to agree by a vote to the establishment of a heritage conservation zone should be removed from the PDI Act to enable the City of Holdfast Bay to duly recognise areas of distinctive character.
a) Policy provided in the Historic Area overlay that provides specific guidance and recognition in relation to ‘Representative Buildings’.
b) Clearer reference be provided in the Historic Area Overlay (and Character Area Overlay) to specifically refer to the statements in the Performance Outcomes.
c) The State Government establish a Panel comprising persons of appropriate expertise, including representation from the Commission, Heritage Council, local government and relevant Government agencies to prepare a roadmap for a staged approach to heritage.
d) Repeal S67(4) and (5) relating to the requirement for 51% of property owners to agree by a vote to the establishment of a heritage conservation zone.
Urban Greening, Tree Planting and Offset Fund
The City of Holdfast Bay understands that having higher levels of natural plant life (trees and shrubs located in street verges, parks and on private properties) in their local communities has many social and environmental benefits, particularly in urban communities. The City of Holdfast Bay is presently exploring and implementing strategies that maintain and increase levels of urban greenery to maximise the benefits of green cover.
To achieve the Tree Canopy Cover Target in the Greater Adelaide 30 Year Plan there is a need to understand that to reduce the heat island effect arising from the increased paved areas and effects of climate change that there is a need for a consistent canopy cover. This can only be achieved by trees being planted on both public land (reserves, open space and streets) and private land. To reduce the heat island effect in the higher density infill areas there is a need to ensure that trees are planted on private land. Developers and builders need to recognise and accept that they have a responsibility to ensure this occurs and the responsibility does not lie only with State and local government.
A significant improvement to planning policy proposed in the early draft of the Code was the requirement for tree planting and provision of deep root zones within infill development / small lot housing. Unfortunately, this policy has been significantly weakened due to the introduction of an Offset Fund for the planting of the trees required by the policy.
The City of Holdfast Bay’s concerns about the approach to providing opportunities for offsetting the planting of a tree on these sites include:
- it undermines the overall intent and purpose of the policy for improving amenity and comfort outcomes for occupants and surrounding properties to infill development sites that the tree would provide over time;
- it focusses planting by local council’s into the public realm, which is most likely to be away from the locations where canopy loss is occurring on private sites, and arguably where the benefits of additional tree planting would be less beneficial to the overall policy intent (ie, open spaces and streets already have tree coverage and lower urban heat island impacts).
- it assumes that this will be available as an option, whereas more established locations (where much of the infill is occurring) already have streets filled with mature street trees and open space areas with established trees (or in some cases limited or no open space areas within the same walkable neighbourhood).
- the inadequate cost, is a disincentive to plant trees which is what the community expects for development and will not result in better design and amenity outcomes for occupants.
The cost-benefit analysis undertaken by the State Government to support an offset fund, misrepresented the amenity benefits of trees within development sites, from a comfort viewpoint, particularly in light of increasing higher temperature days as a result of climate change (this is as opposed to direct energy cost savings). The offset scheme option places increased responsibility on local government in achieving the 30 Year Plan’s urban tree canopy target, when it is private landowners and developers which are reducing tree canopy, contrary to the policy. The position also ignores the importance of trees to contributing to better design outcomes for infill development (spaces created to accommodate the trees are part of this), and this is a key objective of the PDI Act.
While the City of Holdfast Bay understands the rationale for such a scheme particularly in areas with reactive soils, which would result in an increase in the cost of footings, the City of Holdfast Bay is concerned that the scheme is open to misuse and as such considers that the following should be taken into consideration in a review of the scheme.
a) Establish clear rules and obligations on the Private Certifier and applicant to ensure that payment into the offset scheme in lieu of a tree on the property is the last resort. Where a tree is unable to be located on a property in conjunction with a dwelling because of reactive soils, footing costs or setbacks and the applicant is therefore required to pay into the offset scheme, these applications should not be assessed on merit in lieu of a lack of significant vegetation on the site.
b) Ensure that the cost of planting and maintaining a tree must reflect the actual cost, as set by the respective council at the time of assessment.
c) Mandating the size requirement of the tree to be planted on the site.
d) Requiring the planting of an appropriate established tree on the site should form part of the Certificate of Completion/Certification of Occupancy (ie the builder/developer is compelled to plant the tree prior to permission being granted for occupation).
The gradual erosion of elected member representation on Council Assessment Panels has been unnecessary and has not met community expectations, resulting instead in a loss of community voice and local knowledge in the decision-making process. A review of the current limit of one elected member on local Council Assessment Panels should be undertaken to ensure that community views are adequately represented in decision making, particularly as the State Government’s marginalization of elected member involvement on Assessment Panels has occurred in concert with a reduction in the ability of neighbours to make representation and be heard on development in their locality.
Aside from its concerns around the diminishing role of elected members on Assessment Panels, the City of Holdfast Bay is also concerned with the process for appointing independent members to an Assessment Panel, with the current accreditation system discouraging a diversity of professions and community members. This is due to the complexity of the accreditation system particularly for non-planners, the cost of becoming and maintaining accreditation, and the ongoing Continual Professional Development requirements. The restrictive provisions as to persons who can be appointed as Independent Assessment Panel members prevents otherwise capable community members from nominating for membership to the Holdfast Bay Council Assessment Panel.
A further deterrent to nominating for membership to the Holdfast Bay Council Assessment Panel is that currently under the PDI Act there is no statutory immunity from personal liability for members of Assessment Panels, instead liabilities of the Assessment Panel rest with the Council, which is in turn covered by the LGA Mutual Liability Scheme, which can choose not to indemnify. Any individual appointed to an Assessment Panel acting honestly in that capacity would have rights at common law to be indemnified by the appointing authority. The legislation is silent on that point in that there is no provision for immunity, transfer of responsibility of liabilities of individual members to the Assessment Panel.
a) Restore the balance between elected member and independent member representation on Council Assessment Panels to ensure that the aspirations and expectations of constituents are represented with respect to major planning decisions.
b) Introduce measures that encourage broad-based nominations for membership to the Council Assessment Panel to ensure quality rather than simply qualified representation.
c) Legislate immunity for Assessment Panel member decisions to avoid liability falling on councils.
Infrastructure Schemes are not serving the purpose they were intended for. S162-184 collectively deal with the establishment of infrastructure delivery schemes for basic and essential infrastructure. The issue for the sector is that the processes and associated resource implications of such statutory schemes are so complex and resource intensive that they have not been taken up. Rather, the traditional model of non-statutory infrastructure agreements tied to land by way of Land Management Agreement continues to be used.
The City of Holdfast Bay would encourage the resolution of this issue in the Act, as a statutory process would be beneficial where land ownership is fragmented, and coordination of infrastructure is more difficult and for infill Councils where smaller scale public realm works are needed to be part-funded by developers. Councils are still having to set up costly and time-consuming legal agreements to leverage good public realm upgrades.
a) Ensure that infrastructure provision is resolved at the planning stage of the development application process, reducing the need to reserve such decisions through statutory schemes. This will enable the community to understand the future infrastructure provision and enable council’s to plan for their funding and delivery.
The City of Holdfast Bay has noted concern within its community since changes were introduced in March 2021 to public notification requirements. There is a view that people feel they have the right to be engaged where developmental changes and development applications are proposed in their neighbourhood, but that the current planning system denies them of that opportunity. Specifically, the Planning and Design Code reduces the public notification requirements, with significantly more land uses being classified as ‘Deemed to Satisfy’, and therefore not requiring notification. In addition, the appeal rights of third parties have also been significantly reduced, with only restricted developments being subject to third party appeal rights. Notification is an important tool for informing and engaging with communities and the provisions relating to public notification should enable this communication in both metropolitan and regional contexts.
a) Review Division 2 (Planning Consent) under the PDI Act 2016 and Division 3 (Notice requirements and consultation) of the PDI (General) Regulations 2017 to more appropriately consider the impacts of land use and developments on adjoining owners and communities.
b) Reinstate three tiers of public consultation relative to the impact of the development proposal, thereby enabling neighbours to be formally notified, with the option to express their views, and the safeguard of being able to appeal a decision that significantly compromises their amenity.
Regulated and Significant Trees
The City of Holdfast Bay and its community is concerned with the current protections that exist in the planning system to safeguard regulated and significant trees. While the City of Holdfast Bay is working hard to plant new trees, there is not enough available space on public land to replace what is being lost from private land because of the reducing allotment size and increasing built site coverage across the council area. This is such an issue of concern to the Holdfast Bay community that a separate paper is provided as an appendix to this submission containing specific concerns and recommendations to help guide rapidly needed reform.
a) Revisit the regulated tree legislation to reinstate protections once afforded to trees of significant size, irrespective of their relative location to dwellings and swimming pools. It is incongruous to have targets for increasing the urban tree canopy when current laws allow the removal of trees that make the greatest contribution.
With infill development putting pressure on existing infrastructure within the City of Holdfast Bay, the ability for the council to seek a development contribution to be charged against new development that requires upgrade of council infrastructure to support the proper servicing of the intended development proposal need should be considered. Developer contributions are a fair and viable means of raising revenue to improve local infrastructure and assets.
a) Development of mechanisms by which developer contributions can be regulated and applied to address the pressures on existing infrastructure should be considered in the Planning, Development and Infrastructure Act 2016.
The City of Holdfast Bay believes that planning decisions should be made locally. Communities continue to perceive councils as responsible for planning decisions, and as such councils will continue to hold significant interest in all local development outcomes. However, councils have no formal responsibility nor resources to oversee privately assessed applications and may be legally vulnerable if they do so.
The City of Holdfast Bay has previously raised concerns with the use of private certification in the planning system, specifically given that the system now allows for private certifiers to assess applications and approve ‘minor’ variations where a prescribed standard is not met. Section 106(2) of the Act provides that where a relevant authority (which includes a Level 3 accredited professional) is satisfied that development is Deemed to Satisfy (DTS) except for one or more minor variations, they must assess it as DTS. Indeed, the City of Holdfast Bay has experienced instances where developments had been privately certified where the development did not satisfy important criteria. Examples have also been provided of private certifiers exercising considerable discretion in the judgement of a ‘minor’ departure from the criteria.
The system is therefore easily being flouted by private certifiers deeming significant variations to be ‘minor’ to achieve a quick approval that might not be in the community interest. This aspect of the system should be more tightly regulated. The ability for a planning Level 3 accredited professional to act as a relevant authority where there are one or more minor variations under S106(2) should be removed. In this regard, there needs to be both greater oversight and regulation of private certifier decisions, and a return to a system where only local councils make planning decisions.
a) Restore planning consent authority to local government, ensuring that private certifiers do not make planning decisions; or
b) Private Certifiers be more effectively regulated by the Chief Executive of the Department in their role as the Accreditation Authority to ensure the proper operation of the system, and the quality of development outcomes are reflected in practice/on the ground.
Coastal climate change and protection of coastal land
Increased understanding of coastal change is highlighting the need for progressive changes to coastal zoning to accommodate sea-level rise and other climate-related impacts. The City of Holdfast Bay is particularly vulnerable to coastal climate change due to its geographic location. Impacts to coastal land from changing coastal conditions can result in changes to the land that are similar to the impacts of “development”. Areas of “coastal land” are commonly under the care, control and management of councils. The role of councils in managing changes to coastal land due to changing environmental conditions is unclear. As climate-related coastal changes increase, this lack of clarity will continue to increase. Coastal protection mechanisms are exceptionally costly but funding mechanisms do not currently meet the scale of the challenge. As such the following recommendations should be adopted.
a) Coastal planning policies to be based on statewide modelling of 2050 and 2100 inundation and erosion hazards.
b) State Government to develop a state Coastal Retreat Policy that links to the PDI and other relevant legislation.
c) State Government to implement similar reforms to NSW, VIC and QLD with reviews to ensure improved interaction between Planning, Development and Infrastructure Act, Coast Protection Act, Harbors and Navigation Act, Crown Land Management Act and Heritage legislation. Reviews should include in their scope an investigation into funding mechanisms that match the scale of funding required for coastal protection and that fit with state policies, plans and legislative frameworks in a consistent, strategic, and prioritised manner.
Thank you once again for the opportunity to be engaged on this most important review. Should you have any further queries regarding the City of Holdfast Bay’s submission, please do not hesitate to contact Council’s Manager Development Services, Mr. Anthony Marroncelli, on 8229 9904 or at email@example.com.
CHIEF EXECUTIVE OFFICER