The Significance of the Current ACT Government Planning Review
Updated: Nov 27, 2021
Canberra once again at the crossroads
According to Mick Gentleman, Minister for so-called Urban Renewal, the ACT planning system is a mess. For this reason, he has initiated a “Planning System Review and Reform Project”[i] which will wipe the slate clean, thereby setting planning on a completely new footing.[ii] But in what way is the current system a mess? Chief Planner Ben Ponton explains: “(T)he current territory plan forces the territory’s planning authority to approve unsuitable developments …, ” this because it is “a very rules-based system” which results in “people … just going through and ticking off each of the rules.”[iii]
It is undeniable that the current ACT Planning System is complex and difficult to navigate. Many would agree with Ponton that the planning authority is approving unsuitable developments. But is it doing so because of the Territory Plan, and in particular, because this latter is rules-based? Indeed, how could the Plan not be “rules-based,” that is, consist of rules? Surely this is what any piece of legislation is! It is thus not clear what exactly Ponton is claiming. The only way to determine this is to start with what he sees the Review and Reform Project as accomplishing. The project will, he says, in “an effort to simplify the ACT’s existing strict, rules-based system” develop a “new system … more focussed on outcomes.” So according to Ponton the reform envisaged is a shift from a system ostensibly based on strict rules to one focussed on outcomes, whatever this means precisely. Already there is inaccuracy: According to former planner Richard Johnston, the ACT’s “Planning and Development Act 2007 was [already] based on similar concepts”; Ponton’s reform project does not so much seek to introduce outcomes-focussed planning as “… to drive further in the same direction,”[iv] that is, in a direction already partially taken. Given this, however, one must ask whether Ponton is right in his claim that the planning instruments of the ACT are really “rules-based,” as opposed to unnecessarily long, poorly structured, repetitive and full of amendents to, and crucially also, exemptions from, whatever rules they do contain. This in turn raises the question of whether the problems of planning in the ACT have anything at all to do with its being, to whatever extent, rules-based rather than outcomes-focussed. Evidently, in order to assess Ponton’s claims, one must determine the difference between rules-based and outcomes-focussed planning. In particular, one must ask what outcomes-focussed, or, as it is sometimes also called, performance-based planning is.
Section I: What is Outcomes-Focussed or Performance-Based Planning?
In fact, the notion is quite old: in the seventies and eighties in the USA there was “a move away from an exclusionary … zoning system which makes presumptions about the suitability of uses” on the grounds that such a system “leads to ad-hoc, reactionary decision making.” Rather than relying on the creation of zones defined in terms of permissible uses within them, the focus should be on
functional districts within which development limits were determined based on things like open space ratio, floor area or density or even carrying capacities (Baker et al 2006 p3). In “pure” forms there would be no spatial limitations, and any use would be possible subject to meeting performance standards related to its operational effects.[v]
So the idea was that development would be constrained by such things as ratio of built to open space, amount of green space, amount of hard surfacing, density and the like. Difference between different urban areas would be defined in terms of performance standards rather than specific uses; such areas would become functional districts rather than zones in the traditional sense.
Of course, this much alone does not constitute any radically new, non-rules-based conception of planning. After all, strict rules determining limits to “things like open space ratio, floor area or density or even carrying capacities” would still be strict rules, just different kinds of strict rule. The real novelty of the idea lies in there being “no spatial limitations,” indeed in any use at all being possible provided only that it met “performance standards related to its operational effects (Frew 2011, p10)” [vi] In other words, whatever quantitative limits were set would be set, not as strict rules, but as guidelines as to what was acceptable. They would constitute defeasible operationalisable criteria of what constituted the desired outcome of development, that is, of how development was expected to perform. These quantitative limits would thus be justified by, hence based on, statements of desired outcome. For example, a planning instrument might specify the following as a criterion for developments in a certain area (functional district):
That open space be at least 25% of site, with (a) a minimum dimension of ten metres, (b) a maximum gradient not exceeding one in ten and (c) a design and location on site such as to be visible from dwellings on the site
This clearly operationalisable constraint would be justified by, hence based on, a statement of desired outcome such as the following:
Any development should provide open space of such a kind that it is both useable and accessible as well as conducive to a safe and attractive living environment[vii]
The crucial feature here is the combination of quantitative criterion with desired outcome. The former, precisely because it is quantitative, gives clear instruction as to how to implement it, while the latter, because it expresses norms and values, explains and justifies the former. The virtue of this combination is, or so proponents of outcomes-focussed planning allege, that it enables an outcomes-focussed or performance-based planning system to be flexible and adaptive in a way a strict rules based system cannot. The criterion provides developers with a clear indication of what is acceptable, hence tells them from the outset what they must do if their proposals are to be approved. Yet because it is merely a criterion and not prescriptive, it is also possible for developers to argue to the planning authority that in this specific case the criterion should be waived since for various independent reasons the proposal achieves the outcome justifying the criterion. There is, after all, no guarantee that each and every development proposal which fulfils a merely quantitative criterion will achieve the underlying desired outcome. Conversely, not each and every development proposal which achieves the underlying desired outcome will necessarily fulfil the quantitative criterion. Similarly, this combination of criterion and statement of desired outcome comes to the rescue of planning authorities: precisely because the criterion is defeasible, it does not force the planning authority either to reject proposals fulfilling the spirit but not the letter of the law; or to approve proposals fulfilling merely the letter but not the spirit.
Unfortunately, this neat conception is just a little too neat—so much so, in fact, that by the late nineties or so, many communities which had adopted outcomes-focussed or performance-based conceptions of planning had abandoned it! One difficulty encountered was that it turned out to be rather too easy to argue that a proposal which did not fulfil the letter nonetheless fulfilled the spirit! In addition, it proved to be more difficult to formulate operationalisable criteria than is suggested by the simple example given above. Finally, whether a proposal actually did satisfy the statement of desired outcome turned out to be contentious. After all, such statements are highly general expressions of aspiration, even motherhood statements—so much so that what one person might regard as, for example, a usable, accessible, safe and attractive living environment another might not so regard. But for current purposes the following difficulties are most relevant:
· the resources required to implement [outcomes-focussed or performance-based planning], and the time and cost of approval processes;
· unpredictability and uncertainty,
· complexity; and
· difficulties explaining the system to communities[viii]
These difficulties should sound familiar: they are precisely the ones Ponton describes as resulting from a “very rules-based system,” ones which a “new system … more focussed on outcomes” is supposed to avoid! Indeed, Jennifer Roughan, writing of planning reform in Queensland in the late nineties, observes that the effort to be more “outcome focussed has resulted in more criticism than ever that planning and planners are process driven, box-tickers”![ix] It seems, then, that contrary to what Ponton implies, whether development application is just a matter of ticking off boxes, thereby resulting in “unsuitable developments” poorly designed, poorly built and generally substandard, has nothing to do with whether the approvals process is rules-based or outcomes-focussed. The whole contrast is a furphy. Rules-based vs. outcomes-focussed is not the issue if the concern is to achieve a planning system which works better for all Canberrans.
Section II: Two Lessons from History
That Ponton’s explanation of Canberra’s planning woes, hence his contrast between rules-based and outcomes-focussed planning, is spurious is in fact intimated by Canberra’s own planning history. Richard Johnston, who worked for the National Capital Development Commission (NCDC) from 1980 until its abolition in 1989, notes that the Commission had “fairly minimal written controls and no statutory planning scheme.”[x] So the era of the NCDC was not characterised by a “very rules-based system,” at least not of the massively written kind Ponton is targeting. The written complexity begins with the institution of self-government and the passage of the Australian Capital Territory (Planning and Land management) Act in 1988. But it ratchets up a notch with the total reworking of planning instruments undertaken in the early 2000’s by Minister for Planning Simon Corbell. The new planning act and associated regulations now totalled over 1000 pages and the Territory Plan itself grew to around 2,500 pages. In addition, there is legislation for the protection of trees and heritage and, last but not least, the National Capital Plan, which covers those areas of the ACT designated as of national significance, in particular, the Parliamentary Triangle; and for whose implementation the National Capital Authority (NCA) is responsible. On top of all this, existing legislation has been ceaselessly amended. Unsurprisingly, ACT planning instruments are a dark jungle. Clearing some of it is sorely needed.
This, however, has nothing to do with rules versus outcomes. This is definitively shown by another lesson from history, namely, Queensland’s Integrated Planning Act (IPA) of 1997. This was explicitly an attempt to create a planning system which would be “focussed on outcomes and performance (rather than be prescriptive and inflexible).”[xi] And how has it fared? “(T)here is,” writes Roughan,
little hard evidence around whether [Queensland’s] performance based system has been successful (or more successful than an alternative system) in achieving what we were aiming to deliver. Has it led to the innovation it was supposed to unleash? Have better outcomes been achieved? Has it been more efficient? We have never really examined the particular strengths or weaknesses of the performance based approach we have created and implemented.[xii]
Indeed, what little examination has been undertaken suggests that the reform has led to a less efficient system with problems arising directly from its outcomes-focussed or performance-based nature. Statements of desired outcome are inherently highly general and open to interpretation; indeed, they are supposed to be this under the outcomes-focussed conception of planning. But precisely this openness and variability, an ostensible virtue of the conception, has led to inconsistency and variability in decision making. This is ‘flexibility’ alright, but a flexibility which has generated uncertainty and unpredictability in the approval process. In so doing, it has made these processes less transparent, hence less capable of being monitored by the wider community. Thereby it has undermined public confidence in, and acceptance of, the approval process.
For precisely the same reasons, the turn to outcomes-focussed or performance-based planning has so little facilitated innovation that approval processes more often seek to determine “whether a development is simply good enough to get across the relevant tests … than … whether a development is innovative or ground-breaking.”[xiii] This is not surprising: given the rubbery nature of statements of desired outcome, no one can be completely clear about what counts as fulfilling them optimally as opposed to fulfilling them sufficiently, yet somehow a decision must be made, within an acceptable and predictable time frame.[xiv] Every so often, of course, brilliant designs are proposed, ones that immediately stand out to almost everyone as such. But this is not the rule. As a rule, determining whether a proposal is optimal as opposed to merely sufficient is a fraught and in particular temporally open-ended process. Yet a decision must be made reliably, predictably and above all quickly. In other words, the Queensland experience suggests that a focus on outcomes encourages a “near enough is good enough” attitude towards approval. Contrary to what Ponton assumes, it is more likely to stifle innovation than to encourage it.
Section III: Why the Focus on Outcomes?
Why are Ponton and the government he represents so enthusiastic about shifting the focus from rules to outcomes? Reasons have already been given for thinking that it is wrong both to attribute the complexity of existing planning instruments to their alleged focus on rules; and to regard a focus on outcomes as likely to reduce such complexity.[xv] So the real question is not what justifies this enthusiasm, for in fact little does, but rather why Ponton and his government are so blind. The answer is clear enough: they regularly deal not just with development applications but with development applicants, much to the exclusion of everyone else. These applicants will complain about the difficulties they have with approval processes and the more influential of them, with the greater contact, will suggest the latest silver bullet for making problems disappear. Nor do planning authorities themselves and individuals in them often have either the time or the skills to determine properly and efficiently what the problems, their causes and the solutions are. Both the authorities and the individuals in them are thus vulnerable to unconscious collusion with the more influential, typically larger applicants, who, understandably enough, advocate a diagnosis and cure congenial to them. This vulnerability is all the greater under the currently dominant neoliberal conception of governance, which not only robs public authorities of resources but also, more importantly, encourages a conception of their role according to which the task is to enable actors in the economy to realise their private interests in ways that serve the public good.[xvi] Note that this is not to suggest deliberate conspiracy between public assessors and private proponents of development proposals. Deliberate conspiracy can sometimes occur but it is fair to say that in Canberra most institutions and the individuals in them adhere to procedure. The real point lies deeper: the kind of collusion at issue is structural and systemic, not intentional and occasional.[xvii]
All development applicants seek to demonstrate that their application fits the relevant planning instruments. This, however, becomes considerably easier if the applicant can make the instruments fit the application rather than the other way around! This is precisely what a planning system focussed on outcomes allows them more readily to do. Applicants have, of course, always been able, at least when they are large, cashed-up and sources of employment for many people, with ongoing professional contacts in the relevant planning authorities, to make a persuasive case that their applications fit the planning instruments. But the inherent rubberiness, otherwise known as flexibility, of outcomes-focussed planning makes this task that much easier. No wonder, then, that proponents of development find an outcomes-focussed system congenial!
It is thus the empirically untested and politically uncontested opinion of influential developers and their allies that is steering the undoubtedly necessary process of review and reform in the direction of a focus on outcomes. There is stunning evidence of this: Ponton’s reform project is proposing to introduce what it euphemistically calls “Proponent-Initiated Amendment”.[xviii] In effect, the project is seeking to build into the planning instruments a pathway along which developers can themselves amend the instruments governing them! This proposal can only have come from the proponents themselves. And even if it has not, they will have rapturously welcomed it. The ACT’s planning instruments are indeed complex but this complexity is being used to justify making planning instruments in the ACT much more developer-friendly than they have been before—so much so that they threaten to deal a death-blow to a principle which, as we shall now see, has guided the evolution of Canberra since the fifties at least up until 1988.
Conclusion: What is to be Done?
Above Johnston’s observation was noted that the NCDC had “fairly minimal written controls and no statutory planning scheme.”[xix] Its planning regime was not a “very rules-based system” of the kind Ponton is complaining about. To the extent that such a system came to be at all, it only did so later, after self-government and the dissolution of the NCDC. The NCDC made mistakes, of course. Its implementation of its own distinctive conception of Canberra, the so-called Y-plan, significantly favoured the private motor vehicle at the expense of public transport. Yet the conception itself rests on a general principle still sound today even though circumstances are now very different: the principle of town centres, each with a comparable mix of employment, accommodation and amenity which would permit Canberrans to work, live and play in close proximity but with excellent transport links between them.[xx] No centre was to be, as so many in the developer and business community generally have sought make Civic,[xxi] a traditional CBD ringed by suburbs expanding outwards. More than anything else, this underlying principle is threatened by the freer hand outcomes-focussed planning would give to developers.
Why, then, was the NCDC so (relatively) successful—so much so, in fact, that it played a major part in creating a city seen as exemplary by planners and urban theorists around the world, a city like no other, now, however, degenerating into one like every other? Times were different: Australia was much smaller, its cities much less nationally and internationally connected and its income base had not been reduced to mining, tourism, education, agriculture and, crucially, construction. Moreover, Canberra was federally funded, a burden the Federal government had always found onerous. But by 1988 it had come to perceive this burden, in some ways rightly, to be unjust to the rest of Australia and so the umbilical cord was cut. Canberra was on its own, with a new local government implanted into a local economy offering little more than construction and development as a revenue base. Fortunately, at least from its own point of view, this government also inherited a leasehold system giving it unusual powers over land release. Since then, it has increasingly tied its own economic well-being to that of development and construction and has increasingly used its planning and land release powers to maximise revenue—sometimes, of course, to the chagrin, often, however, to the delight of the developer community, with which it squabbles only in the marital bed. These circumstances alone rule out return to the old days of the NCDC, however good these days were.
Consequently, these circumstances rule out any suggestion that it suffices solely to propose, in opposition to Ponton’s outcomes-focussed reform, the clarification, simplification and strengthening of whatever rules currently exist and the introduction of some new ones. “We all know developers don’t give a stuff about rules, they are driven by what they can get away with …” and they get away with all the more if they confront “a supine planning authority … unlikely to oppose them.”[xxii] What we need is not just a reformulation, reduction and strengthening of words but a planning authority with both fire in its belly and the resources it needs, financial, intellectual and political, to fuel its fire. Such an authority is only possible if it does not draw solely upon the advice and opinions of developers and paid consultants but also responds to a citizens’ movement not itself part of government and aware that talk of outcomes-focussed planning and the like is potentially a ruse using the excuse of complexity to give developers a freer hand—something which would kill off what underpins the Y-plan, thereby ‘normalising’ Canberra.
A model for such a movement would be Zürich’s “People’s Initiative for the Promotion of Public Transport,” which developed in 1973 out of opposition to a plan from town hall to implement a totally new underground railway system to replace the existing network of old trams, trolley-buses and buses. After four or more years of struggle the movement eventually succeeded in securing a massive upgrade of the existing network across the entire network, an upgrade directed towards genuine integration and comprehensiveness, such that patrons could travel easily from anywhere to anywhere within the network’s catchment. As a result, Zürich has created arguably the best public transport system in the world, built around the principle of “anywhere-to-anywhere” travel for all citizens equally.[xxiii] The crucial feature of this movement was its autonomy: it found and utilised its own intellectual resources[xxiv] to develop its own strategies for public transport revitalisation and modernisation, in opposition to town hall and independently of all political parties. Indeed, throughout its existence, this movement remained independent, never itself becoming a political party and retaining independence in organisation and in policy development. Other examples along these lines would be the Flatpack Democracy Movement of the English town of Frome[xxv] and the Spanish movement Podemos (“We can”).[xxvi]
So the only real solution to Canberra’s planning woes and, for that matter, its woes in other more or less related areas, e.g., public transport, preservation of public space, protection of trees, bush, parks and heritage as well as equality of access to resources and amenities across all of Canberra, is indeed a true citizens’ movement, democratically organised, politically independent and intellectually vibrant—to use a word that falls so cheaply from the mouths of government and big property. And one of the very first claims such a movement would make of any reform project would be the right to participation in community-initiated amendment of planning instruments.
[i] See https://s3.ap-southeast-2.amazonaws.com/hdp.au.prod.app.act-yoursay.files/8716/0644/3403/Planning_System_Review_overview.pdf. [ii] See https://www.cmtedd.act.gov.au/open_government/inform/act_government_media_releases/gentleman/2021/fresh-start-for-planning-system. [iii] Canberra Times, February 26th, 2021, p. 17, available at https://digital-print-edition.austcommunitymedia.com.au/CT/2021/02/26/3dissue/index.html. [iv] Johnston, Personal Communication, “Outcomes-Focussed Planning,” November 6th, 2021. [v] J. Roughan (2016), “Performance Based Planning in Queensland,” p. 5 available at https://www.planning.org.au/documents/item/7429. [vi] Roughan 2016, p. 2. [vii] This example has been adapted from Roughan 2016, p. 11. [viii] Roughan 2016, p. 2. [ix] Roughan 2016, p. 8. [x] R. Johnston, “ACT Planning System Review and Reform Project,” talk given at Manning Clark House, April 9th, 2021. [xi] Roughan 2016, p. 3. [xii] Roughan 2016, p. 8; italics added. [xiii] Roughan 2016, p. 8. [xiv] This inherent rubberiness points to a more sinister consequence of the focus on outcomes: it facilitates the approval of cheaper but shoddier proposals and can render land valuation more difficult, thereby creating opportunities for speculation, as development potential becomes less unambiguously identifiable—see Roughan 2016, p. 9. [xv] One might at this point add that the existing legislation, the one creating all the problems, already constitutes an at least partial shift towards a focus on outcomes. Johnston first notes that a “performance-based (outcomes-focused) approach” was adopted in Queensland’s Integrated Planning Act of 1997 precisely at a time when those communities in the USA who had initially adopted it had recognised its failure and were moving away from it. He then goes on to write, “Even later, the new (ACT) Planning and Development Act 2007 was based on similar concepts [to those underpinning Queensland’s legislation] and the ACT Planning System Review and Reform project clearly wants to drive further in the same direction”—in effect, to introduce a focus on outcomes already present in existing legislation in even purer form. (Johnston, Personal Communication, “Outcomes-Focussed Planning,” November 6th, 2021) [xvi] See in this connection https://www.canberraplanningactiongroup.com/post/paving-the-path-to-a-brighter-future. [xvii] And this is surely the point Cameron Murray and Paul Frijters are really making, conspiratorial rhetoric notwithstanding, in their book Game of Mates—How Favours bleed the Nation—see https://gameofmates.com . [xviii] See “Planning System Review and Reform Project—Stakeholder Working Series # 3,” ACT Government Power Point Presentation, October 27th, 2021. [xix] R. Johnston, “ACT Planning System Review and Reform Project,” talk given at Manning Clark House, April 9th, 2021. [xx] One might describe this as a principle of intra-urban regionalisation: Canberra was to be neither a dispersed nor a dense, i.e., compact city, but rather a distributed one. Arguably, optimal implementation of this principle requires the simultaneous implementation of a principle and strategy of inter-urban regionalisation. So those concerned to protect the legacy of the NCDC should be reaching out to the region—to those in Yass concerned about the dumping of Canberra’s building waste there or the encroachment of Canberra across the border; or again those in Queanbeyan concerned about their town’s becoming a dormitory suburb for Canberra; or those in Goulburn who are concerned to attract small business and residents to their town. This, not vertical sprawl, is the only real answer to the problem of horizontal sprawl. [xxi] And they are well on their way to succeeding. Note the growing tendency, encouraged by the government, to call Civic City. This goes hand in hand, of course, with the government’s attempt to promote ‘CBR’, the airport tag, as an informal moniker for Canberra. This is all contrary to the spirit of the Y-plan, for which Civic was at best primus inter pares. [xxii] R. Johnston, “ACT Planning System Review and Reform Project,” talk given at Manning Clark House, April 9th, 2021. [xxiii] Nor is this success a function of vastly higher densities: “Zurich city’s density is not remarkable: it is actually slightly lower than the former City of Toronto and wll below many European cities that have much lower public transport usage rates. Most analysts … agree that … the critical factor is the way the VBZ [the public transport authority] functions as an integrated network” (P. Mees, Transport for Suburbia, Earthscan, London, 2010, p. 131) across the entirety of its operations. [xxiv] Not the least from the local university and from non-conformist engineers and transport planners in various bureaucracies. For example, a crucial component of the Initiative was the idea of pulse time-tabling (integraler Taktfahrplan), developed by three young engineers working for Swiss Federal Railways. This idea has gone on to become part of transport planning orthodoxy. [xxv] See https://www.flatpackdemocracy.co.uk. [xxvi] See https://en.wikipedia.org/wiki/Podemos_(Spanish_political_party). For an interesting and very recent account of emerging citizens’ movements in Europe see https://www.theguardian.com/world/commentisfree/2021/sep/16/populism-grassroots-democracy-thriving-europe. More is boiling there than right-wing reaction and potentially racist populism!