Proposed increase in planning powers will allow Minister to run amok

In Victoria, the Minister for Planning has substantial powers to intervene in planning decisions – powers the EDO has always claimed should be curbed.  So we were surprised when The Age yesterday reported that the Planning Minister, Matthew Guy, is seeking to expand these powers, so that he can more easily bypass laws protecting the environment and communities and make ‘fast-tracked’ planning decisions.

While details are sketchy, an expansion to the Minister’s intervention powers is likely to further undermine the integrity of an already inconsistent and uncertain planning system. This is a further chapter in the broad Government agenda to pander to demands of property and major project developers and in the process exclude community involvement in planning and environmental decisions.

As we have learnt from our New South Welshman neighbors (where a former Minister is currently before ICAC for dodgy mining approvals), uncontrolled and unaccountable Ministerial powers creates a susceptibility to corruption which has grave repercussions for public confidence in a planning system. Even more concerning is that the Baillieu Government has already shown itself to be amenable to the influence of monied development interests and random planning decision-making.

Even more concerning is that the Minister already has very wide and, arguably, excessive powers to intervene in planning decisions (what the lawyers refer to as ‘discretion’). He can already ‘call in’ permit applications lodged with Local Councils and impose his own decisions, which are not reviewable by a Court. Victorians have already experienced Minister Guy’s willingness to exercise this wide discretion. Remember the Phillip Island debacle, where in 2011 the Minister unilaterally intervened to rezone land near Ventnor to facilitate a large housing development, against the advice of his own department and overriding years of careful planning undertaken by the Council? Following anger from people of Phillip Island, the local Council (who were not consulted before the Minister rezoned the land) and Miley Cyrus the Minister reversed the decision a few days later. The developer Carley Nicholls is now taking the Minister to court over his backflip. I don’t think Ms Nicholls considered the Minister’s wide discretion in planning decisions provided her with much certainty in that instance.

It is examples like these that have had the EDO calling for a reduction in Ministerial discretion, not an increase.

Similarly, a circus of random decision-making has infected planning down at Narrawong in South-West Victoria.  As if to foreshadow how he intends to implement the so-called ‘fast-tracking’ powers, the Minister intervened in a planning matter before VCAT which concerned a proposed series of housing developments on a vulnerable area of the coast. Expert reports indicated that the houses were subject to a high risk of flooding due to rising sea levels, and risked falling into the sea within the next 60 to 90 years.  The EDO represented a small local community group who opposed the developments in VCAT on the basis that it contravened the State planning rules about building on the coast. Just 3 days before the matter was to be heard, in a decision that can only be descibed as arbitrary and capricious, the Minister intervened and changed the planning rules to allow the development to go ahead. Not much predictability or certainty there either.

In the context of the above examples it is ludicrous for the Minister and the development lobby to now portray to the Victorian public that the Minister needs ‘more say and more powers’ to approve planning decisions deemed to be economically significant to the state. He already has these powers and he’s not afraid to use them. The Phillip Island and Narrawong examples show why increasing opportunities for discretionary decision making by the Planning Minister is a disaster waiting to happen.

The planning system in Victoria is intended to achieve a balance of sometimes conflicting objectives and purposes. It is intended to provide for development and the protection and conservation of our heritage. It is intended to plan for present and future generations. It should be fair, orderly, economic and sustainable. Concentrating the power on one person, the Minister, to make ‘fast tracked’ decisions with economic objectives in mind will undermine these objectives. Those changes will increase the risks of centralized and vaguely controlled power: politicized, if not corrupted, decision-making.

What does provide certainty for developers and the community is a clear and transparent system where everyone is subject to the same rules, and those rules are known to all. These rules need to allow for community input and challenge as well as independent decision making informed by expert assessment.

The Minister’s powers of intervention need to be curbed – not extended. Victorians should be concerned at the Victorian Government’s moves in this direction.

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