PLan’s NOTES ON THE NTG's PROPOSED 'PLANNING REFORM
TO THE NORTHERN TERRITORY GOVERNMENT,
PLan’s NOTES ON THE NTG's PROPOSED 'PLANNING REFORM’.
Please find in the attached pdf, notes on the above documents prepared by PLan: the Planning Action Network, Inc.
PLan_NOTES_ON_THE_NTG-last.pdf
TO THE NORTHERN TERRITORY GOVERNMENT,
PLan’s NOTES ON THE NTG's
PROPOSED 'PLANNING REFORM’
The Government says it wants better planning outcomes.
This is PLan’s submission, with information from the community.
DOCUMENTS
The three documents supporting this reform process are:
Booklet A. Consultation Outcomes Report - (33 pages). Here Elton
summarises public survey input October-December, 2017.
This is a useful information and opinions sharing document.
A chart on Page 19 provides percentage opinions on seven key
planning system questions.
-------------------------------------------------------------------------------------Booklet B. Planning Reform Directions (Dark Blue Cover-12 pages)
This second booklet is very different from the first. It suddenly jumps
to outlining specific sweeping changes proposed as amendments to
the Planning Act and NT Planning Scheme. It is as if each proposed
change was endorsed by a mention in Booklet A.
Booklet B works on the basis that the necessary planning reforms
are already clear, as if derived from the results of the ELTON Survey.
THIS IS SIMPLY NOT TRUE.
For instance, the first proposed change listed is to:
'Revise the purpose of the Planning Act, and refine the structure
and principles of the NT Planning System'.
This is astounding. The Objects of the Planning Act (section 2A)are
the very lifeblood, underpinning balanced planning.
Where in the Booklet A survey is it stated by the community that the
Objects of the Planning Act should be changed ?
These Objects have been in place for many years.
Booklet B introduces both Phase 1 and Phase 2 of the planning
reform amendments actually proposed by the NTG, with references
to where they will appear in the new instruments. This has serious
implications.
Most people have had very little involvement with the planning
system, and how it works. Many have said that they find this review,
and the way it saysit proposes to achieve good overall planning very
complex and difficult to understand.
The normal staged government legislation change process of
presenting first green, then white papers, with legislators then drafting
proposed agreed amendments would have been much better, and
have gained more trust.
-------------------------------------------------------------------------------------Booklet C. Planning Reform Phase 1-Priority Reforms (White Cover)
(19 pages)
1.
This booklet details the changes suggested in Booklet B,
discusses them, and then recommends the wording for most of the
individual proposed amendments, as if now ready for Phase 2.
In my view, many of the people attending ELTON ‘review’ sessions
were pressured step by step to ‘ go along’ or ‘agree’ that these
proposals, even just by session time pressures or group pressures.
A moment previously they may not have even known about the
proposals, their place in the system, or their impact on good planning.
They were however involved in crucial decision making about the
outcomes in the planning system.
It was put to me that agreement was being sought without knowing
the ultimate outcomes. We were often told that time was short. Often
for the participants this was their first exposure to any part of the
planning system, how it works, or the relevant terminology. There
was not time to discuss or digest, and I had to stop.
2.
A main objection by the community is that inappropriate
developments, particularly oversized and insensitive ones, are too
often approved, sometimes for political reasons, rather than for good
planning. This was recognized in Booklet A.
It is well known that developers prefer the flexibility of ‘policy’ above
quantifiable regulation. They seek opportunities to be assessed on
performance outcomes, rather than prior prescription. Interpretation
is king, and fine tuning can slip away.
3.
The newly established NT Planning Commission has been
made responsible for identifying future ‘developer opportunities’
for commercial, including large new residential developments.
The community has frequently expressed concern about its jargondominated theoretical models for Area Plans, such as ‘activity
centres’, and artificial modeling in a future time span. Land capability
and environmental issues, climate change, social and cultural issues,
and public community rights have been easily ignored in the
processes used. There has been superficial consultation, with not
enough community input.
4.
This strategic planning was previously done by a small section
within the mainstream planning organisation by very experienced and
informed planners. Strategic planning does not warrant a separate
NT Planning Commission. It should revert to the main stream, and
share its routine administrative resources, with some appropriate
professional staff supplementation at times when there are major
strategic developments. There is no real role for a permanent
elevated NT Planning Commission with its expensive separate elite
Board, meeting only occasionally, and the need for a wasteful and
confusing duplicated second structure of hearings and decision
making under the same Minister. The Chairman has already been in
part seconded to very important responsibilities associated with the
newly developing NT Oil and Gas industry.
This booklet seems to be largely an agenda covering the developers.
For a long time, there have been other issues than development
approval to be considered in order to achieve good sustainable
planning in urban, suburban, rural and remote areas, within both
tropical and desert NT environments.
5.
STRATEGIC LAND USE PLANNING, NTPS, ETC. (White
Booklet, pages 4-5)
The NT Planning Commission is unnecessary as a permanent body.
Its central role of providing Area Plans will soon be completed.
Its everyday existence rests on a principle of densification, now
enshrined in NTPS by Amendment 387, and the NT Compact Urban
Growth Policy. This is inappropriate to the Northern Territory which
does not have the land shortages and continued population
pressures suffered by Sydney and Melbourne.
The late amendment of the Planning Act involving the NT Planning
Commission was rushed tough in the last days of the CLP
Government, without proper notice or public consultation, particularly
with local government, by Minister Tollner. It should be cancelled, not
consolidated permanently into the Planning Act.
Minister Tollner’s action has resulted in a unwieldy and unsupported
duplication of two planning assessment processes, one of which is
unnecessary. There was really no need for two separate streams.
Tollner’s action has resulted in the NT Planning Commission relying,
even today, on the professional planners of the mainstream planning
section (Development Assessment Services) to carry out the
professional advice assessment of NT Planning Scheme
applications, reporting at hearings, and professional technical support
for decision making.
The infrequency of NT Planning Commission hearings does not
justify a separate organisation chart component for professional
staffing there. As before, assessment and reporting for both DCA
and NT Planning Commission hearings can be done by the same
professional staff without an extra staff structure. The Chairman of
the NT Planning Commission - Mr David Ritchie- has now been
allocated an unrelated second responsibility by the Chief Minister.
Thus it is sensible in both administrative and budgetary terms, not to
persist with the expansion of the NT Planning Commission as a
separate entity (post Minister Tollner), but to re-combine the two arms
of the mainstream planning system into one. The key is to keep
professional and experienced planning staffing at sufficient levels to
keep pace with ongoing strategic plan issues. Otherwise they can
possibly get out of hand through only being attended to only every ten
years or so.
Bringing the two streams back together would also answer another
current processing problem. That is how to support the Minister in
final decision making when dealing with matters presently set for NT
Planning Commission. With a re - combining of the two planning
system streams, the Minister could be directly advised professionally
on all types of decisions falling within that his/her decision making
responsibilities.
6.
NT PLANNING SCHEME (NTPS),ETC (White Booklet, pages
5-9)
The NTPS contains essential zoning, and other important systems
and principles. It has been built up over the years by Planning
Scheme Amendments.
The Objects of the Planning Act are clear and balanced. These
should in no way be weakened in favour of broad policy which
relegates them and changes their purpose in comparison to the
NTPC, in spite of claims of greater transparency.
7.
DEVELOPMENT ASSESSMENT, AND APPLICATION
PROCESSES. (White Booklet, pages 10-13)
It is agreed that the community will be able to continue to rely on the
NTG being responsible routinely for providing printed, and on - line
information about development applications, assessment processes,
hearings and decision making.
The weekly Planning Notices of development applications, including
land clearing, and special proposed changes, must continue officially
in the NT News, and also on informative site notices, regardless of
any other method of advice. Facebook and social media are not
official.
The archived section of the notices should now be freely available to
the public.
The official Land Information System on line, showing land ownership
should be freely available to members of the public.
There should be easy access to DCA reports and decisions, not
always dependent on computer access.
It is agreed as at 2.2.1, that there be pre-application mandatory
community consultation in cases where High Impact Development is
expected. This needs to be defined broadly, but carefully, and
not restricted only to possible impact on amenity and/ or environment.
Development Assessment Services, and not the applicant, should be
responsible for setting up such consultations.
Where appropriate post exhibition meetings should be
available between applicant and potential submitters.
In each case the exhibition period for applications should be 28 days.
Just as there is now a ONE STOP SHOP for planners to help
developers making applications, a COMMUNITY ADVOCATE should
give information on how submissions are to be made. Development
Assessment Services (DAS) has made a useful beginning, with a
switchboard information number. This needs to be more publicised.
Relations between (DAS) and the community should be normal,
promoting transparency and trust in the planning system. There
should be more confidence, more understanding both ways. Less
protective attitudes amongst professional planners are necessary. To
some community is being treated as the ‘enemy’.
‘Minor’ applications may appear simple, but must be handled
seriously. Excessive demands over such as lot size, parking,
setbacks, height, and the placement of sheds and containers should
be avoided, because the impact soon adds up in terms of urban
degradation. Public urban degradation lies in such easy precedents.
Pleasant streetscapes, once carefully monitored, are important in
good planning. Buildings, including homes, should address the street.
Setbacks, with tidy gardens, trees and open space, on residential
lots are important for appearance, recreation and play. This is as
important in multiple dwellings as i single dwellings, including rentals.
8. DEVELOPMENT CONSENT AUTHORITY(DCA)PROCESSES
(White Booklet, pages 13-15)
For a very long time, the community has had little trust in the DCA to
make balanced decisions.
There is strong objection to the more recent use of the Conditional
Precedent form of approval, with impacts like traffic not being
assessed before locking in development approvals. Such is strongly
the case with the 4 Blake Street decision.
The community becomes strongly dissatisfied with any lack
of balanced decision making, calling for change.
Decisions have been seen to be made on political, or broad general
policy bases.
Hearings should be held outside working hours, allowing all
participants equally to attend.
The DCA, not the DAS planning staff, must clearly demonstrate, in
writing, that it has actually taken every part of Section 51 of the
Planning Act seriously in the assessment of all applications. It does
not appear to have being doing so.
Planners should not be permitted to write reports that are properly
DCA reports, and/or recommend the decision to the Chair, or panel
of the DCA in writing, or otherwise. It is not ‘balance’ to do so, as has
been recently claimed by some planners. Some of these reports have
been extremely poor.
We have been appalled and angered by how some community
submissions have been downplayed by ‘professional' planners.
Many do not understand and ignore the real meaning of ‘culture’.
For some time, planners have been routinely making written
recommendations to the DCA even before applicants and submitters
have made their verbal presentations at DCA hearings.
Applicants must vacate the presentation table after finishing their
presentation to allow submitters to properly address the DCA.
The planning system has for a long time ignored consideration of the
essential provision of parks, open spaces, community purpose land,
and other not for profit facilities as parts of applications, or separately.
Pathways must be established for the creation of these essential
elements of social planning.
This is particularly the case with high rise development in the CBD,
and new suburbs when residential lots have been made smaller as
part of increased densification. Since developers do not see this as
their responsibility, it must be made a separate proper task for the
planning system.
No pathway for providing for these social functions has been in place
for over twenty years. The rights and mental/recreational wellbeing of
the public have been denied. Common law rights to open spaces
and the special character of natural urban environments as
Conservation Zones has been abused.
The DCA should be renamed the Northern Territory Planning
Authority to encapsulate its wider responsibility than assessing
development applications only.
Responding service authorities must use their expertise to address
any relevant specifics, and not just routinely submit general
statements of agreement.
9.
DEVELOPMENT CONSENT AUTHORITY PANELS. (White
Booklet, page 13)
It is not agreed that the Chair of the DCA should be a lawyer. Most
important is a knowledge of planning, aspects of planning, and their
wide and narrow implications.
At the start of their tenure, members of all DCA panels must receive
education and training in their tasks and responsibilities.
Each panel should be appropriately composed with Local
Government nominees, and community members. Each should carry
out their particular role, and not follow other preferences. Community
members should remain in communication with the public.
DCA members should not behave as pro-development agents or
political representatives, or in any other biased way.
A DCA code of conduct, must make all conflicts of interest declared.
Reports of reasons for decisions should not be just general
statements, but informative, and easily understood by the community.
The votes of each member must recorded for the public scrutiny.
An informative professional DCA Annual Report should be prepared
promptly by the Chairman for the Legislative Assembly.
10.
APPEAL RIGHTS FROM DECISIONS (White Booklet, p14.)
There is currently an imbalance in the Appeals process. Appeals by
third parties are severely restricted. A genuine appeal system is
essential to the integrity of the DCA, and its processes.
Third parties need to be given the same time for an appeal as
applicants.
The right to appeal should not be governed by neighbourhood
proximity, or limited to particular cause, such as ‘amenity’ or review.
Appeals can be made to the NT Civil and Administrative
Tribunal(NTCAT) or to a full court jurisdiction.
As a right, third party appeals should now be extended not only to
submitters with land situated in RL(Rural Living zones) but also to
submitters in the CB (Central Business), as this is now a prime
residential zone. There should be no limit for ‘standing’.
An effective and accessible Appeals process is a deterrent to misuse
of the planning system and its processes.
Appeals were previously heard in the NT Land and Mining Tribunal.
As a tribunal, it was established that Appeals should not be
dependent of formal legal participation, but that the emphasis be on
interpreting planning and its rules.
As it is a tribunal, this should also be the case with planning appeals
in the NT Civil and Administrative Tribunal (NTCAT). This is a
combined purposes administrative tribunal, rather than a formal court
but it should must special planning expertise.
11. TIME ISSUES WITH DEVELOPMENT APPLICATIONS AND
THE HANDLING OF ADDITIONAL INFORMATION AND
APPLICANTS VARIATIONS
11.1 We agree with reference 3.2.1 that there be a serious time limit
for deferred applications to prevent them falling into limbo.
11.2 Time limits must apply for activating permit use, or be
withdrawn.
11.3 A third area timewise, is the ‘variation situation’. Here the
applicant submits additional or changed information, post exhibition.
The submitter then rarely has time to review the new information in
the three or four days set by DAS before the DCA hearing.
The amended application should be withdrawn and resubmitted as a
new application. At present the usual practice is for it to proceed, but
this disadvantages submitters.
12. EDP’s AND CONCURRENT APPLICATIONS (White Booklet,
pages 14-15.)
EDP’s must be redefined as they were originally intended, thus
putting an end to the unfortunate continued opportunist wasteful
misuse of this device. What appears simple can easily
lead to decision making uncertainties which can become a longterm
threat to the reputation of ministers.
Concurrent applications should be withdrawn. Some appear simple,
but some the combinations proposed are unworkable. There is more
saving in this for developers who use separate applications, in case
the ‘concurrent' one does not succeed.
13. COMPLIANCE AND ENFORCEMENT AND
MISCELLANEOUS RELATED ISSUES (White Booklet, pages 16-19.)
Several issues important to the community arise here. Attention to
these issues is overdue.
For a planning system to work, enforcement of compliance must be
effective. This requires sufficient levels of dedicated competent
staffing, with enforceable legal processes in place.
13.1 Compliance depends on respect for the planning system and its
processes, including the NTPS, and integrity based decision making.
This Planning Reform exercise confirms that tightening compliance
is long overdue. New powers, authorities and tools, are urgently
needed, as well as a will to prosecute. We support this, knowing that
abuse has long persisted.
Two examples are the illegal clearing of no.1 Boulter Road. In this
case Minister Tollner told the community that the penalties were not
sufficient to warrant pursuit. Those responsible for the illegal clearing
were known.
Another serious non compliance is the refusal over many years to
remove the illegal stockpile from Conservation zoned land on the
Kulaluk lease at Ludmilla.
Familiar non-compliance situations include the misuse of zoned land,
especially Conservation land, illegal dumping, failure to activate
development permits within two years, development non compliances in building, like ignoring setbacks, poor drainage
provision, failure to rehabilitate land used commercially, excessive
noise and air pollution, clearing of large areas of natural bushland,
and not maintaining bushland free of certified weeds.
We are pleased that planning staff are actively investigating stronger,
practical compliance, enforcement and penalties to deter not
compliance.
Existing Use Rights are also being addressed(p16). We appreciate
that the passing of time can be a legitimate factor in some existing
use rights matters. However, the local community would very angry if
this category was applied wrongly retrospectively to cases like the
polluting ‘Minmarama Stockpile’ on Conservation land, on the Kulaluk
lease in Ludmilla.
This stockpile was declared illegal years ago by the Planning but
never ‘moved by’ Minister Tollner. The developer had applied
unsuccessfully to retain it as a going concern on site for another 15
years, but was refused. Even though given a very generous time
allowance because it may have been inconvenient to move the fill
promptly, the developer has never moved the mounds of the fill. This
developer appears to have impunity.
Whilst we would support responsible compliance by body corporates,
we regard it as unfair to penalise officers and individual members of
body corporates not individually actually responsible for
non compliant decisions of the corporate body, particularly if they do
not support the non compliance (p18).
14.
CONCLUSION
The word ‘PLANNING' is a much more all embracing than the word
‘DEVELOPMENT’- a much narrower economic term.
That needs to be recognised in a practical way by the NT
Government, in order to achieve better planning for the whole of the
community.
Planning is for people and includes sustainable social, cultural,
environmental issues, as well as long term economic ones.
Many planning issues are not addressed in the Planning Reform
Document. It is seriously too narrow to really examine all necessary
parts of planning responsibility.
Timely genuine public consultation with professional planners who
listen, and can apply what they hear, is the key to better planning
outcomes, and to an open government which the community feels it
can trust.
M A CLINCH
PLan: the Planning Action Network, INC
13.9.2018
