VicSmart is a state government initiative to ‘cut red tape’ and ‘streamline the planning permit process’ for ‘simple, straightforward proposals … across Victoria’. Unfortunately, it is clear to the AIDA committee that the details of VicSmart do not adequately take account of the special nature of our coastal area, and our local planning objectives, as in the Surf Coast Planning Scheme, and, importantly, our local neighbourhood character.
AIDA recently made a submission to the Victorian Department of Planning presenting our concerns with the new VicSmart planning permit process outlined in a consultation draft published in July 2013. The proposed measures are designed to provide faster planning permit decisions for a variety of smaller scale permit applications. The government has committed itself to providing VicSmart planning decisions within 10 working days.
Rules are proposed which will automatically trigger an application as being either a VicSmart matter or a normal permit under the planning scheme. The consultation draft includes all the VicSmart categories of minor development proposals which are to mandatorily and uniformly apply across the state. No application fitting one of these categories will in future be able to be processed as a normal application. In addition, provision is included for any municipal council to specify its own local VicSmart categories in the future as an amendment to the local planning scheme.
The VicSmart categories include some, but not many, of the planning decision issues which have been of concern to AIDA over the years. These categories are to be contained in a new state wide Section 90 in all planning schemes. The VicSmart categories applying to our area are:
Residential Zone
• various forms of 2 lot subdivisions
• constructing or extending a fence which exceeds the maximum height
Commercial Zone
• any works up to $50,000 which are greater than 30 metres from a residential zone
Environmental Significance Overlay
• constructing a fence
• removing, destroying or lopping a tree
Design and Development Overlay
• constructing a fence
Neighbourhood Character Overlay
• removing, destroying or lopping a tree
Heritage Overlay
In Aireys this applies only to the Lighthouse and former keeper’s properties in Federal Street.
There are in all 35 types of heritage-related applications under VicSmart, which include:
• demolishing an outbuilding or a fence
• altering or painting a building
• constructing a fence, outbuilding, veranda, deck or domestic swimming pool
• constructing or displaying a sign
• lopping a tree
Advertising Sign
• displaying a non-illuminated, non-electronic and non-animated advertising sign greater than 30 metres from a residential zone, and not exceeding 10 square metres.
Car Parking
• reducing or waiving the required number of car spaces associated with any as-of-right use.
A fuller description Proposals involving more than one of these categories must be dealt with as separate applications.
To achieve the 10 day turn-around commitment each municipal CEO or his/her delegate will become the responsible authority for all VicSmart applications, and local councils will apparently have no role or powers in the process.
The requirements are specified for the information to be provided by the applicant with an application, for each category of proposal, and these appear to be as comprehensive as those existing for a normal application. But VicSmart has the added requirement that, if an application requires consent from a referral authority (e.g. the Department of Environment) that consent must also be included with the application. If a referral authority fails to provide written consent to any VicSmart application the application is automatically escalated to become a normal planning permit application which will then be processed outside VicSmart by the usual process.
Failure of an applicant to provide any scheduled information not needed for a particular application is acceptable if the responsible authority agrees to it. To be practical however within a 10 day timeframe, presumably the decision on this will rest with the officer processing the application rather than the responsible authority. In any event such a decision will effectively be discretionary and won’t need to be made public or to be publicly justified as it can be in a normal application.
In processing an application, once the 10 day clock has started it will never stop during the 10 working day time limit, so that if an applicant fails to provide required information with the original application he or she must do so within the 10 day period. Although it doesn’t appear to be explicitly stated, the implication is that as soon as the processing time for an application exceeds 10 working days because the applicant has not provided the required information, the application is to be refused. However the applicant could appeal this to VCAT.
Each VicSmart application category also has specified decision guidelines, again similar to those already in the planning scheme provisions for a normal application, to be considered by the new-style responsible authority in deciding on the application. However as this is a state-wide system, these guidelines do not and cannot – either explicitly or sometimes at all – include anything derived from local Surf Coast planning strategies and objectives.
As with the current system, these are dot point lists of individual guidelines which in practice may be of unequal weight or even be contradictory to one another. And as in the present system, there are no rules or further guidance to planning officers and responsible authorities as to how these decision guidelines are to be applied or how much relative weight should be given to one rather than another.
In the case of contradictory guidelines the responsible authority appears to have no option but to determine that one guideline applies in the particular case and that the conflicting one should not. For example, it seems clear that with the new bush fire provisions, which explicitly specify personal safety as the overriding criterion in all relevant cases, any conflicting decision guideline e.g. which advocates vegetation protection, cannot influence the decision in any contrary way.
The consultation draft makes clear that all VicSmart applications will, in this way, be determined on their “merit”, where the responsible authority must use discretion (their words) in coming to its decision.
The consultation draft also states, as justification for the absence of third party notice (i.e. any one else being told about the application and its details in the first place) or review (i.e. an affected member of the community being able either to apply to VCAT for reconsideration of the decision or to be a party to a VCAT hearing about it) that all VicSmart applications have limited onsite and offsite impacts and also “are already deemed to be consistent with policy” whatever that might be intended to mean.
The only rights for review of a decision by VCAT under VicSmart are from the applicant.
This can be for either:
• failure to grant a permit in the prescribed time,
• refusal to grant a permit,
• conditions in a permit, or
• refusal to extend time to commence or complete a development or use.
The legislation required to implement VicSmart was passed by parliament in 2012 and the current consultation relates to minor changes to the Act’s regulations plus the 50 pages of the new Section 90 provisions for all planning schemes.
Ian Godfrey