The other day I posted visualisations of what fully deemed to comply ResCode envelopes would look like, out of concern for the lack of any such imagery provided by government ahead of the new provisions becoming operational on 31 March. The day before yesterday (the Friday before the provisions come into effect) the government posted a new guidance document, the Town House and Low Rise Guidelines. This is essentially an update to the old Understanding the Residential Development Standards Practice Note, and provides assistance in understanding the provisions.

The new material does not include the diagrams of deemed to comply envelopes that I believe should be provided, but it did include another diagram I wanted to see – an illustration of the 10% tree canopy requirement. This is at page 35 of the document and reproduced above.

The tree canopy requirement has been highlighted as a new requirement in the code in the government’s announcements, and it is true that there was no numerical standard for tree canopy cover in the old provisions – this was instead part of a more qualitative assessment of landscaping. The centrality of the messaging about canopy makes sense, as a commitment to protecting and enhancing tree canopy is a key action in the new Plan for Victoria (see Action 12). This one element in that strategy that has carried through relatively strongly from Plan Melbourne 2017-2050, which had also included strong language about urban greening and cooling.

I agree this should be a priority – as climate change makes our cities hotter, adequate tree canopy is going to be ever more important. But do the provisions match the rhetoric?

The key question is whether the new approach to tree canopy is a step forward or back, and whether it will help achieve that Plan for Victoria‘s target of 30% tree canopy coverage. This is why I was so eager to see some visualisation or testing of the outcomes of the new tree canopy standard.

How did it work until now?

The previous ResCode landscaping provisions are reproduced below. (Apologies to those reading on their phone or on other devices where these screenshots don’t reproduce well!)

These don’t set a quantitative numerical standard for the amount of landscaping or tree canopy cover. Instead the decision-maker has to be satisfied that the first four points (the Objectives) are met, informed by the points in the Standard and decision guidelines. That was a qualitative judgement, which would be informed by the site context, existing vegetation, and the landscape plan provided wiht the application.

Notably, that includes several points encouraging retention of mature vegetation. In particular:

• The decision-maker has to be satisfied that the fourth objective relating to encouraging mature vegetation has been met.
• The Standard specifies development should provide for retention of trees (albeit linked to character outcomes, rather than other values of trees); this even extends to replacement of trees removed in the preceding 12 months.
• It is valid to consider, in assessing the landscape plan, whether a tree was removed to gain a development advantage. This opens up the door to require equivalent landscaping – and by implication, preventing development of part of the site – if the decision-maker considers a tree was inappropriately removed to improve development yield.

These provisions effectively acted as a “soft” tree removal control. Even where no permit was required to remove trees, the provisions helped to deincentivise tree removal to facilitate the development. This was a response to the rightly-hated practice of “moonscaping” – stripping a site of all vegetation to make redevelopment easier. In my view the controls were pretty successful at that aim – over more than two decades of assessing and working on ResCode applications, I can think of only a few examples where I felt developers had tried to remove high quality trees before a permit process occurred.

Was the lack of detailed quantifiable standards a problem? Well, certainly appropriate landscape responses was probably one of the most common areas of dispute between councils and permit applicants. On the other hand hand, I would argue that the desirability of responding to existing vegetation is one of the key clearest examples of why the system should be requiring contextual responses to individual sites. Planning processes should be targeted at areas where they add value, and I think this is such a case.

Another key issue with these provisions that is worth noting, before turning to the new controls, is that vegetation was seen almost entirely through the lens of neighbourhood and landscape character. Habitat is mentioned, but the objective actually only allows assessment of this in “locations of habitat importance.” What that meant was not clearly explained, and a decision-maker would need to justify that at least some level of elevated level of habitat importance existed. The provisions also did not mention urban greening and cooling.

As a result of this, assessment of landscaping and tree removal in medium density housing assessment was very focussed on character. This, in my view, reinforced unfortunate inequities in how planning processes treat different neighbourhoods: trees were valued more in leafy affluent suburbs, where there was a strong landscape character, than in more disadvantaged areas that frequently have fewer trees.

This meant that the provisions were not as clear on the intrinsic value of trees, both new and especially existing trees, for habitat and urban cooling.

The new provisions

The new provisions are shown below.

These provisions are now purely about tree canopy – all references to other aspects of landscaping have been dropped. Crucially, they are deemed to comply, which means that in the first instance, only the Standard is assessed. If the 10% (or 20% on larger sites) tree canopy is provided, subject to the other criteria such as building separation and soil volumes, there is no ability to make any further requirement. (Unlike the old provisions, the decision guidelines cannot be considered in such a situation.)

Finally, I note that the new decision guidelines do now mention greening and cooling. However as mentioned those decision guidelines only come into play if the Standard is not met. Habitat value of urban trees is alluded to in the objective’s mention of biodiversity- but again, this will not come into play if the standard 10% cover is met.

This is why it is so critical that the 10% figure gives good enough outcomes, and why I wanted to see what the state government feels those 10% canopy outcomes look like.

What does 10% canopy cover look like?

As I said at the outset, we now have a little more detail in the Town House and Low Rise Guidance document. This document’s tree canopy diagram is reproduced again below, this time with the explanatory notes.

(An aside before I talk about the tree and landscaping issues: the development yield in the diagram is ridiculously low – especially for the 860sqm lot on the left. This diagram – and the various other diagrams in the guidelines showing low yield dual occupancy development – further reinforces my concern that the government has not properly worked through the typologies that will appear under the code. I also want to make it clear that I am not saying we need to live in a world where medium density development looks like the above, but with more trees. There is ample scope, in my view, for a good design code to increase residential densities substantially while still getting good canopy outcomes).

Some questions

These diagrams still leave me with a lot of questions.

Is 10% canopy a good outcome?

This is the biggie, obviously. I was very sceptical of the 10% figure when announced, but despite this was still genuinely shocked when I saw the diagram above. This is, in my view, a really poor tree canopy outcome. This is especially the case when you consider the dropping of other landscape requirements (more about this below).

My own view is that the tree canopy to be achieved under the new provisions is likely to be less – and potentially much less – than was typically achieved under the old provisions in most suburban scenarios. (It might lead to increased canopy on inner suburban development where gardens were typically smaller). The landscaping above would, in my experience, have been unlikely to be considered sufficient in most situations under the old provisions.

Could I be wrong? Sure. But this is where we come back to justification and explanation of the controls. Some testing could have been done to assess typical canopy and landscaping outcomes currently being achieved, to help benchmark then new provisions. What percentage of tree canopy is typically shown on current landscape plans? If that work has been done, it hasn’t been released. It should be.

Does 10% canopy align with Plan for Victoria’s canopy target?

Action 12 of Plan for Victoria states that the government will “increase the tree canopy cover of urban areas by setting a target of 30 per cent tree canopy cover.” Having a 10% canopy cover standard on private land is not necessarily at odds with this objective – a great deal of canopy will be expected to be provided on public land such as parks and road reserves. But we don’t really have any clarity about what that breakdown looks like. To achieve 30% cover across urban areas, what sort of coverage do we need to achieve on private land? And how does that translate to targets on new development? Was work done to ensure that the 10% standard and 30% target aligned?

Perhaps working this out would have been prohibitively complicated. However, even if this is the case, the strategy clearly acknowledges that the 30% target involves an increase of tree canopy from current practice. This takes me back to the site-level analysis suggested above. If we need an increase in tree canopy, we should be able to have some idea of whether the new provisions are likely to result in an increase on private land compared to the old provisions.

No support of that proposition has been provided, and as I say above, it seems unlikely to me.

Do the provisions enable and even incentivise wholesale removal of existing trees?

As noted, the provisions remove the “soft” protection for existing trees that was in the old provisions. They also create a situation where compliance will be much easier to demonstrate by relying on proposed trees – which exist as precise circles on a pan – rather than the vagaries of measuring an existing canopy.

Another issue is that existing trees cannot count toward the standard if they are within 4m of an existing building. New trees are not subject to this restriction. It is also, of course, much easier to construct a building without having to worry about protecting existing trees on site.

It therefore seems to me the provisions make it far preferable for developers to use new trees to achieve the standard than to rely on existing trees.

The controls therefore seem to me likely to encourage a return of the old style moonscaping, which as I said the old provisions had been reasonably effective at eliminating. This is a huge backward step in terms of retaining and protecting urban canopy.

(Incidentally, Plan for Victoria includes a passing reference to a tree removal control applying to trees over 5m tall “in many cases” but there’s no sign of that in these provisions.).

What other landscaping can be required?

As mentioned, the provisions remove the old landscaping objective, and also removes council’s discretion to seek more than the standard specifies. This seems to mean that council cannot require any other landscaping than the tree canopy. This is where the canopy and landscape outcome shown in the diagrams above goes from poor to genuinely diabolical. Those few measly trees are all the plants you are going to get under a minimally compliant design.

I say “seems to mean” above because I have been told that government representatives have disputed this in information sessions with councils, suggesting a broader discretion exists to require landscaping other than the minimum tree canopy. But I cannot see how that can be the case. The General Residential Zone, for example, has a decision guideline requiring consideration of “proposed landscaping” for non-residential use and development, but this is not included for dwellings. The provisions pointedly turn off council’s broader discretion, and indeed the whole point of these changes is that meeting the new code assures approval.

If the government really believes landscaping beyond the minimum tree canopy requirement is or can be required, it should clarify the basis for this as a matter of urgency. However the simple fact is that the code removes other landscaping requirements, and the government assures us that development meeting the standard will be approved. It can’t have it both ways.

Are the controls workable?

This is a larger critique of the whole codified ResCode project – about which I have already said a lot – but the provisions are in my view far too complex to provide the system efficiencies that are used to justify them. Codification shifts ResCode Standards from discretionary assessment guidance into process-critical, black letter law process rules. Councils need to be certain throughout the processing of an application whether or not the development complies with every last point of the provisions, as the legal rights of neighbours, and the council’s procedural obligations, hinge on compliance. Mistakes, or simply areas of doubt, will lead to legal disputes and delays, undermining the supposed process improvements.

Given all this, process rules need to be much simpler than these provisions to be workable.

10% of site area is a relatively simple metric, although this measurement is complicated by its application to overlapping circles. While the actual area calculation can presumably be largely automated, the provisions above show a lot of points of potential error and dispute. Trees can be moved in and out of the calculation based on the amount of soil they are sitting, a judgement about species (which incidentally is contrary to the founding premise that the controls are now wholly quantitative), and how close they are to buildings. There are a lot of moving parts.

There are also going to be some areas that I expect will be subject to a lot of dispute. One immediate challenge is trees overhanging boundaries. The diagram above seems to suggest that canopy outside the site can be counted towards a site canopy total as long as the trunk of the tree is on the land. That makes some sense, in principle, but raises all sorts of practical problems. Can canopy not contained on the land actually be relied upon to delivered, given neighbours could prune such canopy? Can developers line their trees along the boundary to minimise the amount of canopy on their land? Does this interfere with the development potential of the neighbouring site, given they presumably cannot double count this canopy for their own development? And so on.

That is before we consider existing trees. As already mentioned, trees are not perfectly round and symmetrical, with precisely measurable canopies. When existing trees are being relied upon, there will be much more scope for dispute about what the area of actual canopy is. As I have already suggested, I think the complexities around existing trees will unfortunately incentivise their removal.

These points might seem like nitpicking, but this is exactly where this kind of system design – using very complex codes as process rules – takes us. The design of the code – and this is across all of the provisions – is too complex to be used as a process critical deemed to comply mechanism. This is poor regulatory design. I doubt that we will see improved timelines from these provisions.

Final Thoughts

It is good that we at least have some visualisation of a compliant outcome for tree canopy. This is more than we can say for the ResCode building envelopes, as I said the other day. But the images we have seem to show a really dire landscape and tree canopy outcome. In both cases, we have very little to go on to understand the justification and testing done on the controls.

If the tree canopy and landscape outcomes are better than I believe, and will help increase canopy cover, why can’t we see the testing or justification that supports this?

In November 2023 I posted some diagrams illustrating potential envelopes from the partially implemented change to the use of ResCode (the controls then governing housing of less than four storeys) to operate as “deemed to comply” controls.

We now have the final version of those provisions, which go into effect on 31 March. Once introduced you will find them in planning schemes, but for the next few days you can read the provisions here (look under “Gazettal”).

I won’t attempt a full description or critique of the provisions here – there is a lot changing. But I did think it was worth updating my old drawings to reflect the current controls.

(Some Annoying Technical Details)

The key point to understand about the new provisions is that they operate in a deemed to comply fashion.

Prior to September 2023, the provisions provided guidance regarding a typically acceptable outcome (called Standards). It remained open for councils to decide that particular circumstances justified either a more permissive or restrictive outcome than the Standard specified, as long as the intent of the control was met (technically this final level of assessment was against an Objective.) Those circumstances might include the character of the area; or they could be the immediate context, such as the location of neighbouring open space, buildings, windows and so on. Councils also had to consider a range of policy (including neighbourhood character policy) as part of their decision.

(A quick clarification, added 27/3: I have talked in this article about the traditional operation of ResCode, compared to how the new code works – but I should note for completeness that the controls became partially deemed to comply in September 2023, creating a hybrid situation too tediously complicated to bother explaining here).

Going forward, ResCode Standards are fully deemed to comply. This means that if a proposal satisfies the Standards, there is no longer any ability to consider whether local context warrants a different outcome. The council is also barred from considering local policies.

Previously residents usually had the right to object to, and appeal decisions about, most medium density development in established suburbs (with appeals going to VCAT). Now, however, a proposal that meets all the Standards will be exempt from appeal rights. Residents can still object to the council in this situation, but that objection would almost certainly be fruitless given the councils would have essentially no ability to refuse such a proposal.

In addition to this change to how they operate, the Standards themselves have been made more permissive. In particular:

• Increased site coverage is allowed in the General Residential Zone and Residential Growth Zone.
• A new building envelope is allowed (below) which requires a uniform 3m setback but then allows up to 11m of height (depending on the zone) at that 3m setback – higher than the old stepped barn-like ResCode envelope allowed.
• Landscaping standards have been removed, replaced by a tree canopy standard. While the details of this are somewhat complex, the baseline requirement is that tree canopy of 10% of site area needs to be provided.

All the Standards requiring qualitative judgement – for example about neighbourhood character, but also things like landscaping other than simple canopy coverage – have been removed. This means, for example, that if the canopy cover is met, however, there appears almost no scope to require further landscaping. The parts of the provisions requiring assessment of design quality (materials, articulation and the like) have also been removed.

A final change relates to council’s local variations to the Standards. Councils had previously been able to do strategic work to justify varying the state-wide Standards for certain ResCode requirements (which, once accepted by state government, were then specified through schedules to the zones). I have not seen a very clear statement about what is proposed to be done with these, but certainly many will be removed as they are no longer allowed for in the new code. My understanding – based on what I have been told, but which I have not spotted confirmed in writing – is that even those that are theoretically allowable are going to be removed unless they are more permissive than the new state-wide Standards.

As I did back in November 2023, I have tried to determine as best I can what these new deemed to comply forms look like below. These drawings are to give a sense of what the massing of the new buildings under the code will be.

Preparation of such drawings is, in my view, an important part of the assessment of a deemed to comply provision. The entire point of such controls is to provide clarity to developers and the community. Visualisation of the outcomes should therefore have been part of the preparation of the code and should be released as part of the material accompanying the provisions.

A few points of explanation about my drawings:

• The site I used is the same 766sqm site, with a frontage of 15.24m and depth of 50.29m, that I used for my previous drawings. Whether this is a typical medium density redevelopment site will depend on where you live or work; I would describe this as a generous but not enormous “traditional” lot on which you would commonly see some infill housing developed. I got these dimensions from a real planning appeal I worked on in St Albans; I wanted to be able to check my various assumptions against a real example as I went.
• These drawings are based on the 3m setback envelope shown above. The option also exists to use what is basically the old setback diagram (applicants can choose which of the two setback diagrams they follow). I haven’t redone the previous exercise, but I expect using those envelopes would result in envelopes looking pretty similar to my old drawings. However I think this “new” envelope represents a more attractive proposition to developers and is the more relevant one to look at.
• These drawings are for a lot running north-south. For an east-west lot, a larger setback would be required from the south boundary.
• There are Standards that can’t be modelled in this scenario. Notably these drawings cannot account for overshadowing – but this would be unlikely to be a major constraint on a north-south lot.
• I haven’t calculated the envelopes to allow for ground floor open space – although some can be accommodated – as open space is allowed to be provided in balconies. In Residential Growth Zone areas – the clearest precedent we have for these new controls – that’s what typically occurs.
• I have assumed a 6m front setback. Lesser front setbacks can be allowed in some situations under the controls. However in practice if front setback changes, the distance is just swapped with the rear setback as the overall garden area needs to be maintained. (The tree canopy provisions are also a factor here, as a tree needs to be provided in the front setback).
• There are a few hard to account for functional issues – like turning circles into garages – so take these as informed approximations of a plausible form. The ground floor would likely have to have a cantilever adjacent to the driveway to provide a setback so that cars can enter the garage doors. Again, this is a form we already often see. That ground floor cutout isn’t shown, but doesn’t greatly affect the resultant massing in my view as it is thew upper storeys that are most visible from adjoining properties.
• To make the maths simpler, I have shown the driveway running the length of the site. This means the drawings may be a little conservative (meaning that the buildings could be a little bigger than shown), as the increased area of driveway means that the building hits garden area limits earlier than they otherwise might.
• There are some important questions about how tree coverage effects these volumes that I discuss below.

Finally, in interpreting these diagrams, it is important to remember that the effect of the provisions is not just that these forms might sometimes or typically be okay. The point is that within these zones, buildings of this size that meet all the Standards are always deemed okay.

You can click on the drawings for a better look.

General Residential Zone

This envelope allows a 37.6m long three storey, 11m high building 3m from each side boundary.

The measurements of the pictured building are as follows:

• Site size: 766sqm (15.24m by 50.29m)
• Building size: 346sqm (37.6m by 9.2m)
• Site coverage (portion covered by actual building): 45% (provisions allow 65% in the zone, up from previous 60%).
• Garden area: 268sqm (35% – the minimum allowable on a site this size).

Note it is garden area that is the constraint here, not site coverage.

The key unknown here is whether the tree canopy Standard would limit this envelope. There are lots of vagaries about how the tree coverage standard will work – and I foresee all sorts of unforeseen problems in applying this provision (I have since written about that here). However with 45% unconstructed site and 35% garden area, I am pretty confident the tree canopy standard could be met without further constraining this envelope.

Neighbourhood Residential Zone

This envelope allows a 37.6m long three storey, 9m high building 3m from each side boundary.

The measurements of the pictured building are as follows:

• Site size: 766sqm (15.24m by 50.29m)
• Building size: 346sqm (37.6m by 9.2m)
• Site coverage (portion covered by actual building): 45% (provisions allow 60% in the zone).
• Garden area: 268sqm (35% – the minimum allowable on a site this size).

As will probably be pretty obvious, this is almost identical to the previous drawing, but with height reduced to 9m. This is because, as noted above, the key constraint is garden area, not site coverage, and the permissible garden area is the same in both zones. The tree canopy requirement doesn’t change either.

The key difference between the two zones is therefore the allowable height, which comes down to 9m.

Residential Growth Zone / Mixed Use Zone / Housing Choice and Transport Zone

I haven’t prepared a diagram for these zones.

These zones don’t have a garden area requirement, and the site coverage has increased to 70% under the new provisions. That site coverage is so high that the key constraints become the rear setback and the tree canopy standard. I am confident that the tree canopy standard should be able to be satisfied within the General Residential and Neighbourhood Residential Zones shown above, but it’s much less clear to me how the requirement would be met within these higher growth zones. I therefore am not confident what forms would result in these zones.

I could prepare a diagram showing the form constrained only by the rear setback, but I am concerned it would be misleading as such an envelope would quite likely not allow for sufficient tree canopy to meet the Standards.

Final Thoughts

As I said back in November, 2023 my intention here is to try to illustrate the massing these changes allow. You can form your own views about whether this is encouraging good typologies, reflecting the levels change intended in the zones, or giving sufficient clarity or quality of outcomes to warrant removal of resident appeal rights. (I have written in some detail about what I think should be done with the medium density housing provisions in my book about the Victorian system).

You can download my Sketchup files below if you want to play around with them. (Sketchup has a 30 day free trial).

• General Residential Zone

• Neighbourhood Residential Zone

As in November 2023, I think my drawings make reasonable assumptions based on the provisions. And while I have checked them carefully, it is, again, possible I have made a mistake somewhere. There are a lot of moving parts in preparing these drawings while learning the software and making on-the-fly calculations. It is also possible that some other subtle practical constraint exists in the provisions that limits forms.

But as I said last time – my version of these plans should not matter at all. This is an enormously consequential change. The point of the controls should be to provide clarity, and preparation of deemed to comply provisions should involve testing of likely outcomes. Whatever you think of these changes, we should have modelling and visualisation of the buildings that the code is expected to facilitate.

Edited 27/3 to make it clearer that some standards went deemed to comply back in September 2023.

The Victorian planning framework for residential development needs reform.

That is not to accept the much more dubious proposition that the planning system is a significant cause of our current housing affordability problem. However day-to-day the planning system doubtless causes frustration and costs for individual applicants, and enormous difficulties for the council planners (mostly) charged with administering it. Reforming such provisions is an intrinsic good that is worth pursuing.

I also do not believe that means sacrificing other planning outcomes (amenity protection, character outcomes, urban greening, etc) in the name of either process efficiency or overall housing supply. Hard choices between system efficiency and policy outcomes might need to be made if the system is already optimised to achieve its intended outcomes. But where the system has obvious deficiencies, we can focus on remedying those before evaluating the need for more radical changes.

Regulation of Residential Development – What’s the Problem?

So what was the state of the planning system, and its management of housing provisions in particular, leading into the Victorian Housing Statement?

In short, the residential development provisions were – and remain – in complete disarray. 

The design of residential zones, for example, has chopped and changed. Some councils applied the General Residential Zone broadly, based on early guidance that saw it is a largely status quo incremental growth zone, while others applied it sparingly given later guidance that framed it as accommodating much more change. This has undermined the clarity about outcomes the reformed zones were supposed to provide.

Policy could help cover this gap, but it has been increasingly sidelined in the suite of regulatory tools. Councils have been pushed towards describing outcomes in countless zone schedules, but this is a resource-intensive process, and the end results are unhelpful in terms of clearly describing desired typologies and outcomes.

ResCode is, at its heart, a 1990s code for the design of villa units and 2-storey townhouses. It is unsuited to the design of the 3- and 4-storey buildings that are increasingly important to housing supply. In addition to those design problems, basic regulatory maintenance has been neglected. The Department ignored problems in its drafting – which allowed confusion to arise about basics of how Standards and Objectives were to be applied – for more than fifteen years. There were also no tiers added to the ResCode Standards when the new zones were introduced, to provide a baseline of default outcomes expected in each zone category. 

This neglect has occurred against a background of broader system dysfunction, as multiple system reviews (including two highly critical reports by the Victorian Auditor-General) came and went without adequate response, and reform efforts were focussed on narrow and ill-conceived process-based reforms such as VicSmart. Underlying problems – the problematic VPP paradigm for policy expression, the lack of clear state-wide guidance on fundamental policy issues, the dysfunctional relationship between state government and local councils – have been all but ignored.

The Housing Statement’s Regulatory Mad Libs

This was the background against which the Victorian government’s September housing statement landed. While it is not hard to envisage a package of reforms that fixes the above problems, many of these changes will require time to implement. The current disorderly application of residential zones has taken a decade to roll out, for example; a fix will take time. Similarly, a code for 3- and 4-storey buildings will need some proper community engagement and regulatory design work.

Given this, the state government’s lackadaisical response to known issues has been infuriating. Consultation for the 2016 Advisory Committee reviewing the residential zones had highlighted the need for better scheme guidance for higher growth typologies, for example; while the confusion about the operation of ResCode Objectives and Standards has been apparent, and repeatedly raised with the Department, since the Li Chak Lai v Whitehorse decision in 2005.

Against this background of inaction the measures in the housing statement have the air of panicked over-correction. Rather than the careful and methodical reform that was needed, the reforms announced are a half-baked package that smash together good ideas and bad ideas in what seems like a game of regulatory Mad Libs.

An example of this incoherence is the new provision at cl 53.23 for “Significant Residential Development with Affordable Housing.” This promises a facilitated stream to incentivise such housing, which is a good idea in principle. Yet qualifying applications are exempt from third party notice and review rights. Not explained is why the merits of these luckless would-be objectors’ concerns are changed by the presence of affordable housing in the development.

They aren’t, of course; that’s logically indefensible. But the notice and review exemption hasn’t been examined through a lens of whether third party rights are warranted or appropriate. Instead, these community rights are used simply as a bargaining chip, something that the government can trade to developers in exchange for a policy outcome. They offer this swap as an alternative to including meaningful affordable housing requirements in schemes, or enacting the viable alternative of the social housing levy they announced but abandoned in 2022. This is a deplorable way to conceive of community involvement in the planning system.

This clause is one of several new provisions creating further new application streams (including at cl 55.22 – Significant Economic Development and cl 53.24 – Future Homes). This is a further continuation of the proliferation of special-purpose streams, including the VicSmart system but also the dizzying array of provisions increasingly dotted through cls 52 and 53. It is surely time to admit the failure of this strategy, which has vastly increased procedural complexity while eroding the integrity of the core system. At some point, a system that that is all carve-outs and workarounds is no system at all.

The reliance on Ministerial decision-making in the new streams is also troubling. When the Independent Broad-Based Anti-Corruption Commission released their Operation Sandon report in June, former Premier Daniel Andrews flagged that he saw a reduced role for local councils in planning decision-making. But the Sandon report specifically noted that transferring powers to the Minister did not address integrity concerns, and the Victorian Auditor-General has previously been critical of the governance structures around Ministerial decisions. It is odd indeed that the first major planning reforms after Sandon concentrate power in a single decision-maker and dramatically curtail third-party involvement in the system. This is difficult to defend from an integrity perspective, especially given that there has still been no detailed response to the Sandon findings.

There are also real questions about this centralisation of power at a pragmatic level. The days of the Minister handling a small number of hand-picked applications in the name of development facilitation are gone. The Minister and Department will now be processing a wide array of applications that happen to meet (for example) cost thresholds in the new cl 53.22 – Significant Economic Development. The merits of those applications will vary considerably. Will the enthusiasm for Ministerial involvement in these matters survive the inevitable need to refuse a bunch of poorly conceived applications under this clause? And can the idea of the Minister’s office being an elite facilitation pathway survive the scaling-up that will be needed? The statement suggests 90 new planners will be hired to help make these decisions. At that scale, the Ministerial / Departmental team will be operating just as another council, subject to all the same resourcing challenges councils currently face.

The package does not only include process reforms, however. There are also changes to the ResCode provisions, notably converting a range of ResCode Standards to deemed-to-comply (with fourteen changed immediately, and the rest to follow at a future date). This approach essentially reduces ResCode to a box – fit within it, and your proposal will be deemed acceptable. 

Deemed-to-comply ResCode has been looming on the horizon for years as a bad idea whose time would eventually come. Yet despite that long gestation there is no sign that the implications of the change have been thought through. Until now, the qualitative elements of ResCode – alongside the hard work and expertise of council statutory planners who administer the controls – have done much to moderate outcomes under the quantitative provisions and to achieve contextual responses. The qualitative provisions are also the main avenue to tailor outcomes for the different expectations of the various residential zones, as the standards do not change from zone to zone. (Modification of the compliant envelope will only be through maximum overall heights and garden areas).

With those qualitative aspects of the Code stripped away, it should be easy to sketch out what the compliant buildings look like on typical lot sizes. Importantly, those forms will be very similar across the spectrum of zones. If the state government is truly comfortable with these outcomes, it should be willing to publish diagrams of what it thinks these minimally compliant ResCode typologies will look like. That kind of analysis has not, however, been made available. (See here for my attempt at doing this exercise).

The ResCode reforms also sit oddly alongside one of the more defensible ideas in the package, the expansion of the Future Homes program to apply on land with good access to transport networks or activity centres. That program, with its focus on designing and defining appropriate typologies, is an example of the kind of outcome-oriented form-based regulatory design we should be encouraging. Yet the Future Homes are a boutique product, limited in their application by the large consolidated lots they require. It is difficult to imagine that these designs will be attractive to developers compared to the yields offered by the new wave of minimum-compliance ResCode development.

This emphasis on development facilitation without discussion of likely built form outcomes reinforces the “whatever it takes” approach to facilitating development. This is the regulatory equivalent of trying to speed up your car by cutting the brake lines.

Yet for all the emphasis on housing supply, this package has not been accompanied by a proper inclusionary zoning measure, or an equivalent of the government’s abandoned social housing levy. When that levy was abandoned in February 2022 after a concerted property industry campaign, the government announced that a not-yet-specified package of reforms that was “set to deliver massive gains to the property and development sector” was now “off the table for good.”

That package was never publicly released, so it is hard to know how it aligned with this set of reforms. However it is difficult to escape the sense that the 2023 package delivers the development industry its “massive gains” without the social housing benefit that was to be achieved in 2022.

There is a Better Way

If parts of the preceding discussion seem intemperate, that’s an accurate reflection of my state of mind. Two months on from the housing statement, the sense of affront has not abated. This is an upsetting package. That partly derives from what seems like needlessly haphazard hacking at the system, and partly from the antagonistic stance the state government has taken towards local government.

Councils have worked diligently for years to try to implement a flawed regulatory framework they did not design. They continue to be scapegoated for planning delays, but sidelined in the process of system reform. Misguided reform programs have exacerbated procedural complexity, making the system ever-harder to administer. Rather than better target the system, the state government has used the VicSmart program to increase the proportion of planning work that is resource-intensive low-value busywork done under punishing timeframes. It is harder than ever to retain good planners in local government, especially in statutory planning teams. It is against this background that this flawed set of reforms has been dropped on the sector with little warning, guidance, or strategic justification.

A path back from this low ebb is possible, but this will require a change of approach by the state government. In the new edition of my book about the Victorian system, I argue it is time for a recognition of fundamental flaws in the Victorian planning paradigm. Recent planning reform advocacy by PIA and the Municipal Association of Victoria has come to similar conclusions. Aspects of more recent system reform papers (particularly the 2017 Auditor-General report, the 2022 Environment and Planning Committee enquiry, and even – within its tighter scope – the Sandon Special Report) also largely align with this view.

There is little sign in the Housing Statement or elsewhere that state government recognises the problems or is working to remedy them. The Housing Statement does promise a “modern, fit-for-purpose planning system” built on a review of the Planning and Environment Act. However the Act was already subject to review in 2009, and there is little detail as to what the new review will involve. The need for a coherent paradigmatic change to the VPP planning system that sits under the legislation is not addressed.

The new planning paradigm does not need to scrap the VPPs or drastically rewrite the Planning and Environment Act. However it will need us to turn away from certain dead-end “solutions” like the reliance on process streams, timeframe demands in the VicSmart mode, and endless special purpose work arounds in the mode of the Housing Statement. Instead, it will need to revisit the prevailing VPP approach to regulatory design and policy expression. And it will need to place the relationship between state government and councils at its centre, using structural mechanisms to empower councils as genuine and valued partners in the system. 

This article first appeared in the December 2023 issue of Planning News. The still at the top is from the 1920 Buster Keaton short One Week, which you can (and should!) watch here.

On 22 September 2023 all planning schemes in Victoria were changed to make a range of the ResCode Standards (which apply to single houses, and medium density housing up to four storeys) deemed-to-comply. This is a change that has been suggested for a while, and which I have long argued against (I wrote a long post about it here, which goes into the long messy history of this issue).

The Standards were supposed to work as benchmarks – effectively, guides to a typically acceptable outcome. However they were always supposed to be applied with a view to achieving a corresponding overarching Objective, which was a more subjectively worded statement. (The side and rear setback Objective, for example, is “to ensure that the height and setback of a building from a boundary respects the existing or preferred neighbourhood character and limits the impact on the amenity of existing dwellings.”) This meant a decision-maker could decide a particular site context warranted a greater setback than the Standard.

The new changes mean that, for the Standards that are set in purely numeric terms, satisfying the benchmark means that the accompanying Objective is deemed met, and a decision-maker can no longer argue that a particular circumstance warrants a different approach. For now, only the 13 Standards that were expressed in purely quantitative terms have been converted to operate this way, but the state government has foreshadowed the rest will follow. (The same previous post explains a version of this model they proposed in 2021, which explains one way this may work).

The effect of this is that if a proposal meets those 13 Standards it would be very hard for a decision-maker to refuse the application. For the moment, there are still those other qualitative Standards, and these notably include an open-ended standard about neighbourhood character. However an amenity argument against such a development would be almost inarguable. Even thinking in neighbourhood character terms, an issue arises because the 13 quantitative standards are deemed to have addressed character issues too. The side setback Objective quoted above, for example, refers to character. If the proposal fits inside the “box” described by these 13 standards, it will be deemed to be an acceptable character response with regards to street setback, height, site coverage, side and rear setbacks, and walls on boundaries. The scope to argue character arguments is pretty limited.

So what does this mean in practice?

Many will read the above and think it sounds like a great idea. We need housing – why should we be arguing about issues where the provisions set a standard? However to properly understand the change, we need to stop talking in the abstract and look at what the ResCode standards actually say.

I don’t have a concern with deemed-to-comply standards in principle. While I think in practice it will be hard to design a fully deemed-to-comply residential code for larger medium density housing proposals, I think it is at least possible – we already do this for a large proportion of single homes, and have done it in the past for two-dwelling (dual occupancy) developments.

What I do have a concern with is using the existing ResCode Standards this way without modification. These provisions were never intended to work this way, and were not framed with an intention that a Standard-compliant development would be generally acceptable. Having assessed what must be many hundreds of ResCode developments in my career, it is very clear to me that the actual outcomes under ResCode are very dependent on the qualitative and contextual elements of the provisions. In my view, advocates for deemed-to-comply ResCode tend to underestimate the “work” that those aspects of the controls do.

There is also the issue that more than a decade has been spent rolling out new residential zones to guide levels of change expected in areas. Much of that work will be wasted if development outcomes are now increasingly aligned, as the ResCode Standards do not change between the default form of each the three main zones.

That’s just my view, though. What I think is indisputable, though, is that we should be starting with an informed perspective on what deemed-to-comply ResCode looks like. If the government, or other advocates of the approach, think this modification of the provisions leads to goof outcomes, we should be able to see that for typical lots. Traditionally under ResCode it was hard to say what a compliant design envelope looked like, because it was supposed to be influenced by the site’s context.

Now, however, we can sketch out an envelope for typical lot sizes. If a building fits within those envelopes it will be deemed acceptable against most aspects of the Code, and as I said will be very hard to refuse. The amendment introducing deemed-to-comply ResCode Standards should have been supported with that kind of analysis and explanation, including drawings of typical compliant envelopes and typologies on common lot sizes. That would have allowed an informed perspective on what otherwise seems like an obscure and technical change. There is, however, no sign that any such analysis has ever been done.

By now you surely know where this is headed – I have downloaded a copy of Sketchup to have a go at doing such drawings myself.

A few notes of explanation about these drawings:

• The site I used is a 766sqm site, with a frontage of 15.24m and depth of 50.29m. Whether this is a typical medium density redevelopment site will depend on where you live or work; for me this is a generous but not enormous “traditional” lot on which you would commonly see some infill housing developed. I got these dimensions from a real planning appeal I worked on in St Albans; I wanted to be able to check my various assumptions against a real example as I went.
• These sketches are intended to show a plausible compliant massing. They are obviously not real designs. They are not, however, the full envelope either. Instead I have tried to show a plausible development form. The basic template is a pattern I describe in my book about the Victorian system (at page 224) – side-facing units with screened balconies arranged down the lot. It’s not a typology I am a fan of, but your mileage may vary, and it is what ResCode has traditionally led to in situations such as the Residential Growth Zone where less weight is given to surrounding context (in other words, where they were already closer to working in a deemed-to-comply way).
• There are Standards that can’t be modelled in this scenario, such as setbacks from adjoining windows. In my experience these do not usually end up greatly modifying these envelopes, except perhaps on an east-west lot where north facing windows may force a greater setback. However it is an inherent limitation of this exercise that is important to acknowledge.
• I have assumed a 6m front setback (unless setbacks are very large, the front setback is typically derived from the average setback of the adjoining lots).
• There are a few hard to account for functional vagaries – like turning circles into garages – so take these as informed approximations of a plausible form.
• These are all based on the “default” ResCode controls, without local variations.
• I have never used Sketchup before so please excuse the slight jankiness of these drawings.

I say a little bit more about assumptions behind the drawings for each zone below. You can click the drawings to enlarge.

In all cases these are just the standard-compliant forms. Developers can still apply for variations to the standards, but they would be more open to challenge by objectors or the decision-maker.

General Residential Zone

In the General Residential Zone, the envelope leads to the three-storey form pictured above. The building can be higher under the zone (theoretically up to 11m) but in practice the side setback requirements will constrain the height on a lot of this width. I have shown a 9.9m three-storey height, which is the height allowed at a 5 storey setback from each boundary. It could be a lower, but that would also allow the third storey to be correspondingly closer to the side.

The building above has a site coverage of about 53%, actually well under the Standard of 60%. However with this configuration the separate Garden Area control kicks in first – 35% of the site must be Garden Ares. (This has a complex definition, but essentially amounts to garden spaces over 1m wide, with driveways excluded.)

I provided a 2m gap along the side without the driveway. The walls could partially extend to the boundary here, but this would require shortening of the overall form to continue meeting the Garden Area control.

Because the building length is being set by the Garden Area control, if the front setback were reduced, an equivalent setback increase would have to be added at the rear to make up of it (essentially sliding the building forward).

Residential Growth Zone

Under the Residential Growth Zone, the constraint of the Garden Area control is removed (there is none in this zone). The setback from the rear boundary is now constrained by the side setback control. Come to think of it, this means the ground and second storeys could be a little closer to the rear, here – although only a little without varying the standards, as the site coverage is 57%. Similarly, if the required front setback were less than 6m, the building could be a little further forward – but only a little, as it would be constrained by the site coverage standard.

As with the General Residential Zone, overall height could theoretically be higher, but actual height will be constrained by the side setbacks standard.

Neighbourhood Residential Zone

The Neighbourhood Residential Zone (the lower growth residential zone) has the same 35% Garden Area control as the General Residential Zone, so the building is the same length. Height comes down to a maximum of 9m. Note too it must be no more than two storeys, which isn’t clearly reflected in this drawing – this would likely reduce the prospects of building this form.

Thoughts

I have already editorialised more than I intended to about the merits of this change in this post. My intention here, really, was to make this exercise available so that people could get their head around what these standard-compliant buildings might look like. You can form you own views about whether this is encouraging good typologies, or reflecting the levels change intended in the zones. (I have written in some detail about what I think should be done with the medium density housing provisions in my book).

If you wish to play around with these drawings they can be downloaded here (Sketchup has a 30 day trial):

• General Residential Zone
• Residential Growth Zone
• Neighbourhood Residential Zone

While I think these drawings make reasonable assumptions, there is room for debate about the way I have approached them. (While I have also checked them fairly carefully, it’s also possible I have made a mistake somewhere – there are a lot of moving parts in preparing these drawings while learning the software and making on-the-fly calculations.)

Ultimately, though, my version of these plans should not matter at all. This is an enormously consequential change. Whatever you think of it, surely the government should have produced some material showing what typologies and forms it thought the changes might lead to.

Standards Australia are currently revising AS/NZS 2890.1:2004 – Parking Facilities – Part 1: Off-street car parking, the standard that underpins the design of most vehicle circulation spaces other than roads. (The consultation closes November 9). The proposed amendments include enlarged standard car park sizes, reflecting underlying shifts in the so-called B85 and B99 design vehicles. These are vehicles that are supposed to represent the 85th and 99th percentile vehicles on Australian roads – in other words, 85 percent of vehicles are below the B85 size, and 99 percent are below the 99 size. The B85 vehicle, in particular, is the standard vehicle around which buildings and car parking structures are designed.

However cars have been getting bigger, particularly with the popularity of SUVs and large dual cab utes, and the standard now proposes to reflect this with larger design vehicles and parking spaces.

This has, gratifyingly, received some media attention and pushback; there are dozens of comments on the draft new standard arguing against the change. Lewis Mumford famously compared adding lanes to roads to trying to solve an obesity problem by loosening your belt. As apt as that metaphor was – arguable fat-shaming aside – it is even more appropriate for car parking spaces. Increasing the size of car parking spaces to accommodate ever-larger vehicles is an exercise in futility, and is terrible public policy. It will exacerbate the tendency to car-dominated built form, and loosen one of the few disincentives to the purchase of over-size vehicles.

But how does this play out when what is being changed is a technical standard?

The Role of the Australian Standard

This situation has highlighted the ambiguous role played by Australian Standards in informing public policy. The standard is maintained by Standards Australia – an independent non-government, non-profit organisation that sets technical standards used by a wide range of industries. Standards Australia note that they are “not responsible for enforcing, regulating or certifying compliance with… standards.” It could be argued that it is not the role of a standards body to make a public policy decision about whether car spaces should be enlarged, or deliberately constrained to restrict size of vehicles – those are decisions for government. In the current standard, the B85 vehicle is compared to a Ford Fairlane, a vehicle no longer sold – surely the standard should be updated to reflect modern vehicles and up-to-date calculations of what the actual 85th percentile vehicle size is?

It is also fair to say that the preponderance of super-sized vehicles is a much broader regulatory failure – if we want smaller cars on our roads, there are much more direct regulatory and pricing mechanisms that could be used to achieve this effect. Built form controls are a clumsy and indirect method to regulate vehicle size.

Those are fair points. However I would also argue that a standards body should also not be naive about, or blind to, the policy implications of the standards it sets. While governments will set planning regulations about how car spaces are designed – in Victoria this is at cl 52.06 of planning schemes, which does make some modifications to the standard’s sizes – standards are treated as backgroudn documents that can inform decision-making, and designers and traffic engineers will undoubtedly rely on the new standard.

The reality is that an amended standard will be widely referenced in decision-making and design. If there is no change by governments to the way they frame planning regulations, the increased size will likely flow through to actual practice, especially in locations where land is plentiful. This is particularly the case because planning controls implicitly treat design standards for car parking spaces as minimum sizes – the regulations assume that the problem that they are trying to avoid is undersized spaces. Controls framed in this way will not be sufficient to prevent parking bloat.

The risk is that the standards review becomes a policy decision through neglect. The standards decision is waved through as a simple reflection of empirical reality; and then planning practice then falls in lien with the standard, either through regulations being updated based on the standards, or through decision-makers giving weight to the standards when assessing proposals.

A Better Way Forward: From B85 to “Standard Design Vehicle”

Many submitters to the review of the standard have argued against the changes to design vehicles and parking space sizes, citing the negative environmental and built form consequences of designing for larger vehicles. This is pleasing, but I fear risks being dismissed as misunderstanding the role of the standard. Arguing with the size of the 85th percentile vehicle in particular seems – superficially at least – to be arguing with reality itself.

While I agree that the vehicle and space sizes should not be increased, I think the way forward requires a rethink of how the standards are framed. In particular, the definition of the B85 vehicle should be revised to sever its relationship with a statistical measurement.

The subtle distinction we need to acknowledge here is that while the B85 vehicle is nominally representing an 85th percentile vehicle, the nearly-twenty-year gap in updates to the standard means that the B85 vehicle hasn’t actually represented a statistical reality for some time. Through the latter years of that period traffic engineers have readily acknowledged that vehicles are, in fact, now larger than the dimensions the standard was based on. Yet in practice we have accepted that it is reasonable to design for this size and let those who want to drive larger vehicles live with the inconvenience that results. It is not so much

We have been designing our built environment for cars about the size of the existing B85 vehicle standard for a long time. It is time to treat it not so much as a reflection of an ever-shifting staitistical measurement, but rather as a reflection of an implicit compact between designers, planners, traffic engineers, and drivers: this is the size of vehicle we will accommodate; larger than this and it is your problem.

The B85 vehicle should therefore be retained at its current size but renamed to “Standard Design Vehicle” or similar. This will free the standard-makers from feeling that they have to chase a shifting statistical measurement. As a piece of standard-making, it can be rationalised as a move towards consistency and predictability over the chaos of ever-shifting design measurements that will perpetually chase the latest trends in vehicle design. That it will neatly sidestep the dilemma of Standards Australia becoming a de facto policy body will be a secondary benefit.

This article was originally published through the blog of the Local Government Information Unit.

The Operation Sandon Special Report, released in July by the Independent Broad-Based Anti-Corruption Commission, is vital reading for all Victorian planners and allied professionals. This is not so much for its findings about the matters at Casey that prompted the investigation, but instead for its timely centring of the issue of integrity in the discussion of planning system reform.  

Planning system reform is frequently framed primarily through a lens of red-tape reduction that sees increased system efficiency as its primary goal. However more balanced system reviews have also recognised that it is vital to maintain system effectiveness – after all, no level of regulatory burden is warranted if the planning system is not achieving the policy outcomes it is there to achieve. 

However the Sandon report is an important reminder of the third key pillar of any balanced system reform package: transparency and integrity. While some system reviews have commendably highlighted this as a key focus – notably 2003’s Better Decisions Faster and the 2017 review of the Victorian Planning system by the Auditor-General – too often this aspect of system design has passed unremarked. 

This likely reflects a wider complacency about integrity issues with roots in the design of our system. Victoria’s extensive third-party notice and appeal rights, combined with the interplay through the decision-making process between council planning officers, elected councillors, VCAT, and (occasionally) the Minister, have done much to keep the planning system clean.

This has meant Victoria has until now not had the moment of truth that the NSW planning profession faced nearly 15 years ago following investigations into the Wollongong council. Writing about those findings in Planning News in 2011, The Hon Jerrold Cripps (then Commissioner of the NSW Independent Commission Against Corruption) highlighted key system design features that can create corruption risks: routinised exercise of discretion (where, for example, standards such as height limits were routinely varied, and where insufficient guidance existed about such variation); out-of-date planning instruments (which further encourage variations to planning  standards); and lack of clear justification for decisions. 

This list of system traits should, I think, prompt concern for Victorian planners. The architecture of the Victorian system – built on highly discretionary controls and frequently vague principle-based guidance – has fundamental vulnerabilities from an integrity perspective. If the Victorian system has indeed been kept (mostly) clean by third-party rights and interplay between different decision-makers, we should be alert to the implications of system reforms that wind back those rights or centralise decision-making.

The Sandon investigation’s focus was particularly upon the behaviour of councillors, and in response to the report Premier Daniel Andrews commented that it was the government’s view that “the role of local councils in significant planning decisions should be reduced.” This foreshadowed subsequent reforms that have diverted responsibility for various categories of significant proposal from councils to the Minister.

Yet the Sandon report offers no basis for preferring Ministerial decision-making over that of councils. It notes (at pages 184 and 185) that “the corruption risk that applies to a councillor may also apply to a minister” and that the corruption risks of elected officials undertaking decision-making “[cannot] be resolved by transferring responsibility from elected councillors to a minister.” The report goes on to note various examples of dubious Ministerial decisions. This echoes the Auditor-General’s report of 2017, which was highly critical of the governance and transparency surrounding Ministerial decision-making.

Neither the Sandon report, nor integrity concerns more generally, should be used to justify shifting powers from councils to the Minister.

What Sandon did recommend, however, is shifting planning permit decisions from elected councillors to independent decision-making panels – a model used, with some variations, in NSW, South Australia, and Western Australia. The report insists that such a change would not be anti-democratic, arguing that “the Planning Act makes clear that the planning permit process is an administrative process of evaluating a proposal against the relevant criteria.”

An obvious rebuttal is that under the Act permit decision-making has in fact generally been vested with political decision-makers, with unelected decision-makers taking over only on appeal or when elected decision-makers choose to delegate their power. Nonetheless, this model is attractive at a theoretical level. It can be analogised to models of branches of government: in this model, plan-making is seen as a democratic / legislative function, and the business of making decisions against that plan is an administrative / executive function requiring only limited further democratic input.  

This leads to my only criticism of what is otherwise an excellent report, which is that this conception of the role of democracy in decision-making sits uneasily alongside its own observations about how policy is written in the Victorian system. Echoing previous reviews of the Victorian system, the report notes that the way policy is framed in Victoria creates a “broad scope of plausibly ‘correct’ decisions.”

This creates an integrity challenge. As the Sandon report puts it:

The scope for disagreement on the same facts poses a problem for oversight; it is harder to identify self-interested or corrupt decision-making if such decisions can be easily said to satisfy plausible planning motives and cannot readily be discerned from good-faith decision-making. 

I would add, however, that the lack of policy resolution also complicates the report’s suggestion that permit decision-making is a purely administrative role. If policy remains unresolved at the strategic level we cannot blithely dismiss the role of democratic engagement at the planning permit stage.

The issue of policy resolution returns us to the importance of centring integrity and transparency issues in discussions of system design. If we conceive of integrity risks as flowing from obvious ethical transgressions such as bribery or undeclared conflicts of interest, then the solutions are conceptually straightforward. It is for these actions that checks and balances such as review rights and appeal bodies provide clearest value.

It is not that simple, however. There are many shades of grey between the extremes of a conceptually ideal decision (made in the public interest, well reasoned, and not subject to any conflicts) and a corrupt decision. These include not just more ambiguous or marginal forms of conflict of interest, but also a dizzying array of factors that can undermine the rigour of decision-making: ideological preconceptions and biases; poor or boilerplate explanations; selective or purposive reading of the scheme; lack of attention to the replicability of decisions; substitution of heuristics for bespoke assessment; and so on.

Individual decision-makers – and others who should be assessing matters as a decision-maker would, such as expert witnesses – are also subject to countless subtle pressures that can drag them away from ideal decision-making. These most prominently include time pressures and (for expert witnesses) the insidious financial pressure to justify proposals for those who hire them.

This is partly a challenge for individual planning professionals. We should not conceive of integrity as defined by a clear ethical “cliff” over which we can fall into corrupt behaviour. Rather, we each stand on the top of a dome, with no clear line between us and the slide off the edge into poor or improper decisions. Our responsibility as planning professionals is to continually audit or own decision-making and professional practice to keep ourselves centred on the top of that dome. 

The planning system should help us in those efforts by, as much as possible, providing clarity about the edges of acceptable decision-making. The Sandon findings about the broad scope of plausibly correct decisions are reminder that, too often, the Victorian system fosters a lack of clarity that leaves too much scope for garden-variety poor decision-making that can then blur into, and help conceal, genuinely improper decisions.

Crucially, improvements in this regard can help improve all aspects of system design. When considering system reforms in terms of the pillars of efficiency, effectiveness, and transparency / integrity, it is often the case that these imperatives are in tension. Third-party appeal rights, for example, have an efficiency cost for a transparency / integrity dividend (and, I would argue, an effectiveness bonus as well through improved outcomes). An efficiency-focussed reform that winds these back is therefore likely to have an effectiveness and integrity cost. This may be justified, but the trade-off should be weighed carefully. Improving the clarity of schemes, however, has the potential to improve efficiency, effectiveness and transparency simultaneously. 

The opportunity for genuine system improvement will be missed, however, if there is not a rigorous and careful response to the Sandon report. Previous system reviews (such as the 2017 Auditor-General report) were allowed to pass without this occurring. Instead, these reviews were swept aside as reform packages were released that did not properly align with those findings. This allowed problems to fester and has contributed to the current difficulties with the planning system. It is vital that this not be allowed to occur with the Sandon findings. 

This article was first published in the October 2023 VPELA Revue and is based on my keynote address at the 2023 VPELA conference.

IBAC’s Operation Sandon report into planning decision-making in the City of Casey, released last Thursday, has further fuelled expectations of a major shakeup of the planning system. It has long been rumoured that the state government is eager to make major changes to Victoria’s planning regime, and the report provides an opportunity to add governance and integrity justifications to those reforms.

The commission’s most dramatic recommendation is that statutory planning powers – essentially, the deciding of planning permits – be removed from elected local councillors and instead be given to independent decision-making panels. This raises the spectre of a major dilution of community input to the planning process.

This prospect was reinforced by Premier Daniel Andrews’ comment, in responding to the findings, that it was the government’s view that “the role of local councils in significant planning decisions should be reduced.”

While this prospect may be alarming to some, the Operation Sandon report itself is measured and thoughtful. It will be important, however, that the Andrews government responds holistically to the IBAC recommendations. An incomplete implementation of the recommendations, or their opportunistic use as cover for an ill-conceived transfer of power from local governments to state government, would cut against the commission’s findings.

Premier Andrews’ reference to the loss of councils’ powers over significant planning decisions suggests a more limited transfer of power away from local governments than IBAC has proposed. However, it also seems likely that the state government is after a quicker fix than the full implementation of independent planning panels, which would be complex and politically challenging to achieve.

This raises the risk of a half-baked response to the IBAC findings. Reporting in recent months has suggested the state government has been preparing a suite of reforms under which the state government would assume responsibility for various significant projects and precincts. This would extend a longstanding pattern of creating special ‘carve-outs’ in the system for certain categories of proposals considered too important to be subject to the standard assessment by councils.

The IBAC report should not be used as political cover for further ad hoc expansion of ministerial action at the expense of local governments. Ministerial decision-making is not inherently more transparent than that of councils. The commission was critical of the lack of reasons given for key planning decisions at both council and ministerial levels, for example, and it is far more common for ministerial decisions to be made without detailed publicly-released justification. In 2017, the Victorian Auditor-General expressed similar criticism of the lack of transparency surrounding ministerial decisions.

Indeed, the commission specifically notes that the corruption risks it identifies in relation to councillors also apply to the minister, and that the issues it raises cannot be solved simply by transferring responsibility from councils to the minister.

Similarly, the commission’s proposed independent planning panels would need to be part of a suite of reforms to avoid them presenting their own problems.

A key objection is the potentially anti-democratic nature of such panels. The commission tries to address this head-on: one section of the report is titled “Removing decision-making power from councils is not anti-democratic.” The commission argues that public opinion has a limited role to play in decision-making at the permit stage.

Theoretically, this is an appealing position – policy-setting should be democratic, but having set that guidance assessment of planning permits against that policy should be a more administrative exercise.

The difficulty is reconciling this with the commission’s own findings about the way planning policy is written in Victoria. The IBAC report is just the latest review of the system to note that the Victorian planning frameworks leave, as the commission puts it, a “broad scope of plausibly ‘correct’ decisions.” In simple terms, planning frameworks are too vague.

As they note, this presents a corruption risk because improper decisions will not clearly be contrary to policy – yet this critique also undercuts the argument that planning permit decisions are purely administrative.

The lack of clarity in the planning framework means that it is only when planning permits are sought that many policy questions are truly resolved. If that problem is not fixed, these critical decisions would be shifted to unelected bodies. That would indeed be anti-democratic.

The IBAC report is just the latest in many critical reviews of Victoria’s planning framework – including by the Victorian Auditor General, Better Regulation Victoria, and the Legislative Council’s Environment and Planning Committee – that have criticised the system in similar terms.

Taken in combination, these reviews paint a picture of a planning system that is in need of a comprehensive review to improve the efficiency, quality, and transparency of decision-making in Victoria.

Previous rounds of planning reform have been ineffective and even counterproductive. It is important that the response to IBAC’s report is more sophisticated, and not simply an extension of the reactive reforms of the past.

This article was originally published through the blog of the Local Government Information Unit.

The new edition of my second book, The Victorian Planning System: Practice, Problems, and Prospects, is out now.

The book has been comprehensively revised, with factual updates throughout. It has also been thoroughly re-theorised, drawing more on literature about regulatory design, and more carefully drawing put principles of good decision-making and good system design. As a result its critique of the operation of the system has been considerably sharpened. I think I’m much clearer now than I was in 2017 about why the Victorian system – which seems so sound in theory – has performed so disappointingly over recent decades. I also try to outline an alternate approach to system design that I argue can lead us away from the repeated cycle of unhelpful or counterproductive reform that we have seen over the last two decades.

In addition to the reconceptualisation noted above, major revisions include:

• New Foreword by the Hon. Richard Wynne.
• Updated to reflect the new post-Smart Planning / VC148 structure of schemes
• New discussion of good decision-making.
• Thoroughly revised discussion of system design, including more carefully defining a vocabulary for sophisticated system design discussion, and new sections about the ideal planning provisions and ideal planning system.
• More discussion of the proliferation of special purpose system streams.
• Discussion of betterment and compensation, including the windfall gains tax.
• Extensive updates to the discussion of metropolitan strategy, including Plan Melbourne 2017-2050 and its implementation.
• Extensive updates to the section on residential development, including discussion of how the new zones have been managed, apartment standards, the proposed “Performance Assessment Modules”, and an updated critique of the current sorry state of the residential development provisions.
• New section on housing affordability.
• Expanded discussion of PSPs, notably including more critique of outcomes.
• Major updates to reflect the new Environment Protection Act, including discussion of the roles of general duties.
• Sustainable built form discussion updated to reflect recent changes, including the ESD roadmap.
• New section on native vegetation removal and biodiversity offsets.
• Restructured and updated discussion of climate change adaptation.
• New section addressing the difficulties of addressing Aboriginal heritage in a colonial planning system.
• Updated history of system reform, addressing smart planning and the Better Regulation Victoria review.
• More use of regional examples throughout.
• Generally about 25% crankier.

These are amongst many other updates.

I’m really proud of the new edition and really hope it is helpful to people (and more successful than the last edition was at influencing the path of system reform!)

For the publisher’s page, including an order link, see here.

The new edition of The Victorian Planning System: Practice, Problems and Prospects is now available for pre-order from the publisher’s page, with an expected publication date of April June.

I’m really pleased with this new edition, which is very thoroughly rewritten, including a thorough review of the concepts about system design and decision-making. My aim has been to write a book every Victorian planner feels they should own.

More will follow soon, but for now, here’s the blurb:

The Victorian Planning System: Practice, Problems and Prospects is an accessible introduction for all those who use the Victorian planning system, including planners, lawyers, councillors, developers, design professionals and community advocates. It explains key terminology and processes in simple terms and explores how the planning system is used to pursue policy goals. This discussion is contextualised through examination of a variety of planning policy challenges, including housing affordability, activity centre planning, and climate change.

This second edition has been comprehensively revised and updated to address changes since 2017. These include the finalised Plan Melbourne 2017-2050, the “Smart Planning” program, integrated Planning Policy Framework, revisions to residential development provisions (including the Better Apartments Design Standards), and the new Environment Protection Act, among others. Other new or heavily revised content includes discussion of planning in growth areas, biodiversity offsetting for native vegetation removal, and Aboriginal heritage.

This edition also includes reconceived discussion of decision-making and regulatory design. It reviews the history of planning system reform in Victoria and explores why the system is still not as effective, efficient or transparent as it should be. In response, the book outlines a vision of a new planning paradigm that is more capable of achieving bold policy goals. It is essential reading for all Victorian planning professionals.

The publisher’s page is here.

However I was interested in what we can see from the data about whether VicSmart is achieving its objectives, considered on its own terms purely as a fast-track mechanism. I came up with the following three graphs from DELWP’s PPARS permit activity data.

The first shows the total numbers of applications in the system compared to VicSmart applications (VicSmart was introduced in 2014 but PPARs doesn’t record VicSmart numbers before 2015/16). The second then shows VicSmart as a percentage of applications, making slightly clearer the share of total permit activity going through the stream. This started at 6.6% in 2015/16 and increased particularly sharply as a result of the Smart Planning reforms in 2017-2018; just under one in five applications (19%) now go through the stream.

The final graph shows average gross processing days across both normal and VicSmart streams. This was 119 in 2015/16, ticked up marginally in the next couple of years to 120, and dropped down modestly from 2018/19 onwards, finishing at 114.

My interest in gross processing days is because I have always argued that VicSmart does little to assist in processing applications more quickly. It therefore seems likely to me that the fast-tracking of VicSmart applications is achieved mostly through reallocation of resources, rather than actual efficiencies. (In other words, some applications will be dealt with more slowly as a result of the fast-tracking of VicSmart matters). Gross processing days should give us a sense of whether there is an overall system efficiency being achieved.

These graphs suggest any such effect is modest.

It is true that there is a step down in processing times in 2018/2019, which does make some sense given the aggressive expansion of VicSmart ahead of this period – as shown in the second graph, the proportion of applications going through the system doubled between 2015/16 and 2018/19.

However it is worth remembering that these applications went from a statutory processing time of 60 days to 10 business days. If such a significant volume of applications were being dragged down to 10 days from a notably higher number, one would hope to see a more pronounced effect on gross times than is seen in this data. That the change is so modest (just over a 4% reduction) suggests that the VicSmart applications have not been significantly sped up, and / or other applications slowed down to compensate for much of the additional speed in the aggregate timeframe numbers. (I think the latter is probably a more pronounced effect, but this is just an educated guess.)

The other point to note is that application numbers are trending down through most of the time period in question. That should, all other things being equal, result in some improved efficiencies. (Of course, the Covid-19 pandemic is a huge system disruption that effects the tail end of this period – but I’m not sure there is any obvious Covid story to tell either way from this data).

If there is some timeframe improvement from reduced total workload – which is hard to prove but seems to me eminently plausible – then the reduction in gross processing days attributable to VicSmart would be a subset of the modest improvement visible in this graph.

There is lots of uncertainty here, obviously, and the PPARS data doesn’t break out some numbers that would be helpful in understanding what is going on, such as average timeframes for non-VicSmart applications.

However, given how central VicSmart has been to the reform agenda for the last decade, and the considerable problems the system causes, one would hope to see some more clearly detectable system-wide impact. A 4.2% reduction in gross timeframes in a period where application volumes dropped by 12% is, I would think, a very poor return on the effort devoted to the mechanism.

Perhaps this isn’t fair; perhaps DELWP have better data or analysis that demonstrates a system-wide benefit. If anyone is aware of such analysis, I’d love to see it. Certainly I think we need more evidence before more of our eggs get thrown in the VicSmart basket.