THE PROPOSAL
For an ACT Independent Planning Commission, Local Planning Expert Panels & Rigorous Building and Construction Regime.
PURPOSE
To propose that the relevant ACT Government Committees examine the need for and potential to establish an ACT Independent Planning Commission, ACT Local Planning Expert Panels and a more rigorous Building and Construction Control regime.
INDEPENDENT PLANNING COMMISSION
The Canberra Planning Action Group, in its submission to the ACT Standing Committee Inquiry on ACT Planning Bill, proposed the establishment of an ACT Independent Planning Commission similar to the Northern Territory Planning Commission to:
“Set the strategic framework for integrated land use, transport and infrastructure planning in the ACT, work with the community to deliver more sustainable and cost-effective outcomes for the community that reflect environmental and heritage values”
The Northern Territory Planning Commission is an independent statutory whose purpose and authority can be summarised as:
It sets the strategic framework for integrated land use, transport and infrastructure planning, working to deliver more sustainable and cost-effective outcomes for the community that reflect environmental and heritage values.
It must consult with the community to develop strategic plans and policies for inclusion in the Territory and Plans.
Its advice must be sought on significant development proposals.
CPAG believes an ACT Commission’s full-time membership should also be limited to seven people with relevant skills (planning, architecture, engineering, environment, heritage, community, indigenous) and demonstrated independence. The measure for “demonstrated independence” needs to be set and would probably need for selectors to look interstate, such as is done in the NT and WA.
The selection panel would’ of necessity need to include members of the ACT Labor, Greens and Liberals but should include two community representatives selected by the community councils.
The ACT Planning Commission should also have specific responsibility for strategic planning, at arms-length from government and be charged with conducting comprehensive community consultation, particularly if developing “district strategies”. It has to be sensitive to local social and economic conditions and reflect the aspirations of local communities and only secondarily the government’s agenda.
The ACT Planning Commission should not be involved in detailed policy setting. This would continue to be carried out by ACTPLA, subject to scrutiny by the Assembly committee process (which needs to be given more time and resources to do its job effectively). However, ACTPLA must properly support this scrutiny by the Assembly, by providing detailed reports on what changes are proposed to the territory plan and why. This is particularly important in relation to the Draft ‘new’ Territory Plan.
Nor should the ACT Planning Commission be involved in Development Application decision-making, otherwise there will be confusion about its role, priorities and processes. Nevertheless, its advice must be sought on significant development proposals.
The ACT Planning Commission must exemplify best practice in Local Strategic Planning, as set out in the Planning Institute of Australia (NSW Division)’s Policy Statement July 2012. Note in particular from the ‘Background’ section: “the goals of local strategic planning are to protect significant aspects of the local natural and built environment, guide the efficient and effective use and distribution of scarce resources at a local level and also guide the delivery of key infrastructure for the benefit of the local communities.” The NSW Local Government Act 1993 requires all NSW Councils to prepare a ‘Community Strategic Plan’, incorporating the findings and strategies resulting from local strategic planning. This seems to be a good model for an ACT Planning Commission to have regard to.
LOCAL PLANNING EXPERT PANELS
CPAG proposes the establishment of Local Planning Panel(s) along the lines of those in NSW to decide ‘significant’ Development Applications (either in size or attracting substantial objections) – Local Planning Panels | bmcc.nsw.gov.au
These panels are typically drawn from a register of people with relevant expertise and hold meetings in public, with their reasons being published. CPAG believes this should go a fair way to reducing disputation in the process as well as hopefully producing better based decisions and restoring some TRUST in the system.
Local Planning Panels were introduced by the NSW Government in 2018, across Councils in Sydney, Wollongong and the Blue Mountains. The focus of the panel is on the determination of development applications that are contentious. Planning proposals are also required to be referred to the Local Planning Panel for advice. The referral criteria and operational procedures for panels are set by the Minister for Planning.
Development applications are referred to the Local Planning Panel for determination where the proposal:
Involves a departure from development standards.
Meets the definition of contentious development.
Is classified as sensitive development.
Where there is a conflict of interest.
BUILDING & CONSTRUCTION QUALITY CONTROL
There is another (post planning) problem that needs to be addressed - 'We've reached a crisis point': Experts decry ACT building industry | The Canberra Times | Canberra, ACT
The overwhelming majority of high-rise apartment buildings in Canberra are likely to have major defects, industry experts have estimated, with one warning the territory's construction industry has reached "crisis point".
Experts in engineering, waterproofing and strata law have told The Canberra Times that structural and design flaws would, in their estimations, exist in most new high-rise developments in the nation's capital, ranging from minor to more significant.
They said a number of factors have combined to create the problem, including a lack of regulation, the government's apparent reluctance to punish bad practice, consumer ignorance and Canberra's extreme hot and cold weather.
Their concerns echo complaints detailed in submissions to the ACT Assembly's ongoing building quality inquiry, which has exposed numerous cases of shoddy construction work in the capital”.
The extent of problems in the ACT's construction industry were laid bare, with accounts of shoddy construction work, building delays and owners being left out of pocket by broke builders detailed in submissions to a 2017 government inquiry – 'Scarred by the experience': ACT building nightmares revealed | The Canberra Times | Canberra, ACT.
The 2017 Government Inquiry were advised that ACT government inaction effectively meant that apartment owners in buildings above three storeys had "no recourse against their builders whatsoever" to fix defects. One reason is the Access Canberra uses an engage, educate, enforce approach and a risk harm model as outlined in the Accountability Commitment when investigating possible breaches of legislative requirements. Enforcement of legislative requirements is supposed to occur in situations where there is:
a failure to comply with legislation and standards.
an unacceptable standard of work or conduct.
The ineffectiveness of this approach is illustrated in its last Building Action Snapshot below which demonstrate a pro-active approach that is not so when compared with the reality as outlined in complaints detailed in submissions to the ACT Assembly's ongoing building quality inquiry, “which has exposed numerous cases of shoddy construction work in the capital”:
From 1 July 2018 to 30 June 2019, Access Canberra
589 proactive and reactive inspections across all types of buildings
112 cases received regarding building and construction
During this period 263 cases regarding building and construction were closed
Regulatory action taken from 1 July 2018 to 30 June 2019
197 demerit points issued across 50 construction occupation licensees
3 Rectification orders
11 notices of intention to issue a Rectification order, including where a Rectification order was subsequently issued
38 Stop Work notices
10 notices directing building work to be undertaken
RECOMMENDATION
CPAG proposes the ACT Government undertake a comprehensive review of the planning, development and construction in the ACT with the objective of establishing:
An ACT Independent Planning Commission similar to the Northern Territory Planning Commission;
Local Planning Panel(s) along the lines of those in NSW to decide ‘significant’ Development Applications (either in size or attracting substantial objections); and
A more rigorous Building and Construction Control regime.
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By Albert Oberdorf and Richard Johnston, 26 January 2023