Developers odds-on to win at planning tribunal

Date:  March 21, 2015 – 6:28AM

Jason Dowling

Councils have almost become redundant in the decision-making process for controversial residential developments, according to a RMIT University study.

The house always wins, or in the case of Victoria’s planning tribunal – big housing developments nearly always win, new research indicates.

Councils have almost become redundant in the decision-making process for controversial residential developments in Melbourne’s suburbs, according to a RMIT University analysis of permit applications.

When councillors refused a permit, almost nine out of 10 permit applicants went to the Victorian Civil and Administrative Tribunal and in 73 per cent of cases the council’s decision was set aside and the permit granted.

When councillors supported a development and residents appealed to the tribunal, the tribunal upheld the council’s approval in 85 per cent of cases, the report by RMIT planning researchers Joe Hurley and Brendan McRae showed.

Once councils and the state government set strategic planning rules for an area, the power of a council to influence contentious individual planning applications diminishes considerably, an extract of the draft report indicates.

Although councils and third-party objectors, such as residents, may be able to slow or modify a development – often at a cost of millions of dollars to the project – they are rarely successful in stopping it.

The researchers looked at 759 development applications across the 31 metropolitan Melbourne councils in 2011 using minutes from council meetings, with the full report expected to be published later this year.

The research focused on new residential development applications considered by councillors to highlight decisions in the context of urban consolidation policy.

The report, Competing objectives, interests and politics in development assessment, said in contentious planning cases the tribunal has become an entrenched part of the application process and the tribunal offered developers “another spin of the wheel” at attractive odds.

It said given the number of cases where council planning officer recommendations were overturned, “[the tribunal] is going beyond providing oversight on the political influence of councillors”.

Dr Hurley said planning law was often not black and white and included a level of discretion that assisted both developers and councils to deliver planning outcomes tailored to individual sites and the character of an area.

The research indicated a “protectionist impulse of local-level elected representatives and the role of the tribunal in making decisions that significantly diminish this protectionist influence”.

“The system at the moment is doing a pretty good job of papering over the fact that local representative decision-making is really being circumvented,” Dr Hurley said.

“For contentious issues, they are effectively withdrawing that delegation from the local level of government,” he said.

Going to Victoria’s planning tribunal is not cheap.

Another report by Dr Hurley showed a tribunal case can cost developers several millions dollars and residents more than $100,000.

Asher Judah from the Property Council said the report indicated the planning tribunal was doing its job and councils were not.

“[The tribunal’s] job is to determine points of law, in these cases, planning law,” he said.

A spokesman for Planning Minister Richard Wynne said the government was preparing legal changes so that the Victorian Civil and Administrative Tribunal must, where appropriate, take into account the extent of community opposition to permit applications.

Municipal Association of Victoria president Bill McArthur said councillors had “the complex task of considering an application in the context of the planning scheme and local planning policy, not based on councillors’ personal views, while also fairly representing community views”.