CPAG Forum, April 21st, 2022
The proposed reform of ACT planning instruments is, says Chief Planner Ponting, a shift from a system based on rules to one focussed on outcomes. But will it solve the problems he claims to afflict a rules-based system—problems of complexity, inefficiency and unimaginative box-ticking? Planning consultant Jennifer Roughan has examined Queensland’s experience with this kind of shift. She points out that neither in Queensland nor indeed anywhere else (p. 3) has it essentially improved planning. Indeed, it “has resulted in more criticism than ever that planning and planners are … box-tickers” and “… appears to have created a less efficient system.” (p.8) It has neither reduced complexity nor demonstrably facilitated innovation nor led to evidently better development. (p. 8) Nor has it increased community confidence in the system—so little so, in fact, that the Local Government Association of Queensland has called “for a return to a planning framework that … allows for the use of prescriptive standards … where appropriate. … .” (p. 14) And, Roughan points out, these difficulties have not arisen just because a good idea has been implemented badly (p. 12); the fault lies with the idea itself.
So what is the idea and why is it flawed? In essence, outcomes-focussed planning is “the prohibition on prohibitions.” (p. 5) As far as possible, planning instruments should neither prescribe nor prohibit. Instead, in the first instance, they should specify performance, that is to say, desired outcomes, for example, that a development provide open space which is “a) useable; b) clearly defined;” and “c) a safe and attractive living environment.” (p. 11) Then, planning instruments should specify, for each performance outcome, an acceptable outcome, for example, open space which is “at least 25% of the site area” with “a) … a minimum dimension of ten metres; b) … a maximum gradient not exceeding one in ten;” and “c) designed and located so that it is subject to informal surveillance from dwellings on the site.” The crucial feature here is how the acceptable outcome stands to the performance outcome: it is merely a defeasible guideline to realisation of the performance outcome and it can be waived if developers can show that their proposal achieves the desired outcome even though it does not meet the acceptable outcome.
What, then, is the fundamental flaw in this conception of planning? Roughan writes that such planning “grapples [much more often] with whether a development is simply good enough to get across the relevant tests … than with whether a development is innovative or ground-breaking.” (p. 8) In other words, it is brake on rather than a facilitator of innovation! There are two reasons why this is so: Firstly, formulating a performance outcome is difficult:
Often performance outcome statements are vaguely expressed and capable of multiple interpretations. In reality, many do not set a … meaningful bar. (p. 9)
This is hardly surprising: as expressions of fundamental norms and values, performance outcomes are motherhood statements which can be implemented, to varying degrees of plausibility, in numerous ways. What, after all, is it for an open space to be a useable, clearly defined, safe and attractive living environment?
Secondly, more importantly, because performance outcomes are motherhood statements, the articulation of truly innovative implementations of them requires that those making and those assessing a proposal be genuinely committed to the performance outcome. That is, they must not have ulterior motives able to hijack either formulation or assessment of a proposal since this would tend to engender second-rate or even specious interpretation of what realises the performance outcome. Yet developers, even those who are genuinely idealistic, are simply not like this. Their very position in the economy dictates that at some point they will cut corners, indeed, possibly even bullshit. And assessors find themselves in a similar position: as planners assessing proposals, they need to get the job done within an acceptable time frame. So they, too, will be vulnerable to second-rate interpretation. Outcomes-focussed planning encourages, it does not inhibit the tendency of those subject to external pressures to opt for any halfway plausible interpretation of performance outcomes.
This points to the fatal flaw: the concept of outcomes-focussed planning and planning instruments rests on a naïve assumption about what development applicants and their assessors are. If developers and all other stakeholders had the open-ended amounts of time, resources and good will to sit down and thrash out some concrete implementation of performance outcomes, we would have a planning process which was innovative and produced better development. It would even be, in a certain sense, simple and efficient—simple and efficient because everyone would have had the time, resources and good will to make an effective contribution. But this is far removed from reality and the government knows that it is. The assumption is in fact not so much naïve as disingenuous.
We can draw from this two lessons: firstly, it fits neatly with the shift to outcomes-focussed planning that some bureaucratic instance should be given discretionary authority without meaningful oversight. For if performance outcomes are only meaningfully interpreted and implemented in an open-ended process of proposal, assessment and revision in which all stakeholders have the time, resources and good will for genuine participation; and if those actually making and assessing proposals are neither inherently willing nor indeed able to engage in such a process: then the whole process needs an instance with discretionary authority, simply in order to put an end to interpretation. In other words, outcomes-focussed planning enhances the discretionary role of bureaucracy because its capacity to make decisions requires such enhancement. Needless to say, this enhanced role might well fall to the Chief Planner.
Secondly, we see the real point and necessity of prescriptive rules. Not by mistake, not by accident have planning instruments traditionally been prescriptive—full of prohibitions on what can be built, where it can be built, how high it can be built and, crucially, by what time it must be built, a crucial feature of the leasehold system designed to prevent land hoarding. The rules are there because the actors involved in proposing developments are not, and indeed should not be expected to be, primarily committed to the performance outcomes. Rather, they are primarily pursuing their own objectives. Ponting’s ‘critique’ of rules-based systems is thus a misrepresentation of such systems. The idea of outcomes-focussed planning is as spurious as the idea of an outcomes-focussed legal system which permitted me to rob a bank because my proposal included giving half the proceeds to charity.
So what is to be done? We cannot return to the days when, as Fischer puts it, Canberra enjoyed “an exceptionally high degree of planning control” and plans could be implemented “without political compromise and undisturbed by unwarranted private influence.” (Fischer, p. 1) The history of Canberra remains, however, as a unique resource for opposing a government financially dependent on property interests and a developer friendly bureaucracy. Andrew Barr and Mr. Geocon misrepresent the Bush Capital as the leafy streets, large blocks and free-standing bungalows of affluent ex-public servants. Properly understood, it is the Australian adaptation of the Garden City, with its ideal of universal access to the benefits of town and country. The Bush Capital is thus primarily an ethical, not an aesthetic ideal, one reflected in particular in the leasehold system, with its origins in opposition to land speculation, and we need to draw upon it as such. We need a Canberra-wide movement around this ideal, one able to challenge shibboleths such as that urban sustainability requires a sea of concrete criss-crossed by light rail; able to develop its own policy for using the leasehold system to address homelessness and housing unaffordability rather than abusing it as a revenue pump; and insistent on a fair distribution of employment, amenities and services across all of Canberra. Such a citizens’ movement is the true home of the open-ended process in which performance outcomes, in themselves mere motherhood statements, are meaningfully interpreted.
Fischer, K. (1984) Canberra: Myths and Models, Institute of Asian Affairs, Hamburg
Roughan, J. (2016) “Performance-based Planning in Queensland,” presentation to a seminar of the Planning Institute of Australia, Queensland Division, March 29th; available at https://www.planning.org.au/documents/item/7429