Apologies for this very, very long, but important post.

Yesterday (1st May) in Parliament, MP Hayes moved the following motion. What follows is extracts from his long speech, plus further extracts from the Labor member (Ms Shing) as well as from the Greens (Dr Ratnor). For those interested, we have uploaded the full Hansard transcript and readers will find the relevant sections under the ‘Planning Policy’. The uploaded document is available HERE.

Mr HAYES (Southern Metropolitan) (14:04): I move:

That this house calls on the government to give greater weight to the local planning policy framework by:

(1) amending section 84B of the Planning and Environment Act 1987 so that the Victorian Civil and Administrative Tribunal (VCAT) is required to give effect to local planning policies, rather than just take planning schemes into account;

(2) amending section 60 of the Planning and Environment Act 1987 so that VCAT ‘must’ rather than ‘may’ consider ‘any strategic plan, policy statement, code or guideline which has been adopted by a minister, other government department, public authority or municipal council’; and

(3) requiring the Minister for Planning to implement mandatory height controls rather than discretionary height controls when mandatory controls are sought, at the height requested by municipal councils in planning scheme amendments, either on an interim or a permanent basis.

I am sure there are people in this Parliament who disagree with me when I put forward the virtues of a detached house with a front and a back yard. They prefer high-rise. They like urban consolidation. They are, of course, absolutely entitled to that view, and there is room for a balance between the two. But what I am saying is that we listen to planners who responded to the needs of the community back then, and where there is disagreement, the way you resolve it in a democracy is by giving people a voice, a say. Let the people decide. Then for planning matters, let the local residents decide. It is their neighbourhood, it is their community and it is their environment. They are the ones who have to live there and take care of it.

One of the most galling things about the push towards urban consolidation and the push towards rapid multi-unit and high-rise development—the move away from even flats, let alone houses with front yards and backyards—has been the way that local communities have been systematically robbed of any say in the decision-making on issues that affect them and their living environment very directly. In my view it is one of the drivers of the political alienation and unhappiness in the electorate that commentators constantly remark on these days. It is one of the drivers of the move away from the big parties, which ignore the concerns of local residents, which parties like Sustainable Australia are benefiting from.

Now, I accept at once that councils are not perfect, not by any means—in some cases far from it. I have been a councillor and a mayor myself and have worked with many councils. I am not starry-eyed or naive about them, but they are ultimately democratically accountable. Voters can get rid of councillors who are not reflecting their views or values. The same cannot be said for the Victorian Civil and Administrative Tribunal, known to all of us as VCAT, which the state government has given the authority to override councils. It does so constantly.

Let me give the house a few examples from the daily litany of a body that runs rampant over public opinion. In McKinnon, at 242–250 McKinnon Road, the Glen Eira council proposed a height limit of four storeys after consulting the community. VCAT allowed the property developers to have six storeys. In Dudley Street, West Melbourne, the City of Melbourne rejected a 25-storey mixed-use development, arguing that the building exceeded local height limits and was insufficiently set back from Dudley Street. VCAT granted the application. At 9 Royal Avenue, Glen Huntly, Glen Eira City Council allowed a developer to have a four-storey building. The developers were not happy with that and went to VCAT seeking five storeys. VCAT gave them the five storeys, saying that it would only be two storeys taller than the prevailing local context of robust two-storey buildings with hipped roofs and that a four-storey building would be an inefficient use of the site. Really?

We are often told that high-rise buildings are the way to give us housing affordability. If that is their purpose, they have failed miserably. Young people have never been further away from owning their own home.

So what needs to change? In our view, it is not complicated—two words: local democracy. Give the local residents the power in relation to planning. The Planning and Environment Act 1987 is supposed to establish a framework for planning the use, development and protection of land in Victoria in the present and long-term interests of all Victorians. The act enables our councils to develop planning policies—strategies—and to implement planning controls—zones and overlays. These policies are created through rigorous local community engagement and independent analysis to develop a framework which will protect the interests of our cities

But section 60(1) of the act, which sets out the matters that must be considered by the responsible authority, including VCAT, does not include the strategic planning policies developed by councils. Instead these important policies are relegated to the category of policies that may be considered by VCAT. We should amend section 60 so that VCAT must be required to take properly gazetted and adopted policies, including local council policies, into account. These policies are not just whims; these policies also, as I said, must be adopted. They must have passed the minister’s perusal at some stage, so they are approved council policies.

we are aiming here for a much more modest outcome, by trying to tilt the present imbalance in VCAT decisions towards local democracy. I call on this house to support giving people a say in something that has real impact on their lives: the character of the street, the suburb and the municipality in which they live. The progressive erosion of people’s rights in planning matters has been soul-destroying for those who get caught up in these unequal David and Goliath struggles. It is one of the things driving voter alienation, driving cynicism about politics and political leaders and driving voters away from the major parties. You might think you have got away with it, but it has not gone unnoticed. I urge you to support this motion, and I indicate that I am ready to sit down at any time with any interested member of this house to discuss planning reform—not more planning deregulation, not more power for property developers, but real planning reform, which is an idea whose time has well and truly come.


(MS SHING) One of the challenges that we have here is, firstly, in the preamble of the motion itself. Moving to the first point of the motion as drafted, there is a proposal to amend section 84B of the Planning and Environment Act 1987 so that the Victorian Civil and Administrative Tribunal—VCAT—is required to give effect to local planning policies rather than just take local planning schemes into account. One of the other challenges that we have here, and that is also reflected in other parts of the motion itself, is the mandatory rather than discretionary application of policy to decision-making processes, which in and of themselves will vary depending on the individual circumstances, and which we have seen in various ways apply across the height control and other decision-making processes that have been undertaken by local councils, by government and by VCAT in previous decisions.

So rather than in fact providing the sort of certainty that local communities are wanting—which seems to underpin the drafting of the motion as put by Mr Hayes—we see that this will have, perhaps paradoxically, the consequence of creating less certainty for local communities on the basis that there will be more complexity and more uncertainty and indeed greater costs associated with people and bodies who apply for permits in certain circumstances

One of the challenges that we have here is that the complexity of these issues, the distinguishing features between mandatory controls and discretionary elements of decision-making, creates a further level of difficulty when we look at the way in which we interpret this particular motion moved by Mr Hayes today. In regard to the requirements set out as proposed in paragraph 1 we see that there is an endeavour to require VCAT to give effect to local planning policies rather than taking planning schemes into account. The very purpose of taking planning schemes into account is in fact linked back directly to meeting those obligations under the way in which we give effect to those local planning policies. This is in fact something which strikes me as an extraordinarily complex, confounding element of the motion, which I am not sure gives effect to perhaps what may have been intended here

In giving councils the opportunity to provide a level of flexibility and some discretion in their decision-making, we are assisting councils, and agencies indirectly, with complicated and evolving matters that need to be considered in their own circumstances—that cannot simply be resolved by a simple line or a desktop assessment or a measurement or a metric which may be undertaken through, for example, a pure desktop review.

It is about having decision-making which is more dexterous and more representative of what is occurring on the ground. This is something which I think the planning scheme nobly aspires to achieve in the context of decisions which are fit for the purpose of a range of different circumstances. So these sorts of land use and planning issues again need that slightly nuanced and different decision each time. It is in fact something which might otherwise give rise to grounds for appeal or legal proceeding, where certain matters in individual circumstances have not been taken appropriately into account or have not been given sufficient weight or, for example, using administrative legal principles, where irrelevant matters have been taken into account. So this is a theme which runs through the motion itself in the context of potentially vast unintended consequences in the event that the motion were to be agreed to and were to succeed.

If we look, for example, at the City of Moreland, it has adopted a local policy that bans minimum car parking amounts in Brunswick, Coburg and Glenroy. On the one hand we have a really significant benefit here that some may claim is actually delivering substantive gains from a sustainability perspective, but on the other when we look at the location of these areas they are in key shopping districts and retail strips. When we look at the practical application of these particular decisions and we think about the way in which that might impact upon car parking amounts for a parent who is collecting groceries on the way back from collecting the kids from school, or someone who is dropping off delivery goods to those retail and trade precincts and cannot park along local roads because there is not any space left, we then have a specific and very localised challenge. That is why in fact the imposition of a mandatory scheme fails to take account of those practical considerations that apply on an everyday basis.

requiring VCAT to take into consideration as a matter of compulsion every single strategic plan, document or component of a decision-making process would in fact perversely—and I think paradoxically, as I have outlined already—perhaps diminish our capacity to have a really good, clear, consistent application of the planning scheme by VCAT in those situations.

The government will not be supporting this motion. It will, as I said, create a planning system which is unfair, which is inconsistent, costly and uncertain. Also, it will decrease the level of transparency which we are working towards. I note Mr Hayes’s motivations in moving this particular motion. I note the themes which underpin it around greater levels of transparency and certainty. Again, it would be the government’s view that to introduce changes in the form proposed by the provisions of the motion would be something which would fail to achieve these ends and in fact would compound the challenges which Mr Hayes has already outlined in his contribution today. So the government will be opposing this motion.


Dr RATNAM (Northern Metropolitan) (15:06): I welcome the opportunity to debate Victoria’s planning system in this place and thank Mr Hayes for bringing this motion to the house. Victoria’s planning system is broken. It is producing poor development outcomes that are unaffordable and unsustainable despite the community desperately wanting better quality housing stock. I saw this firsthand as a councillor and chair of the urban planning committee in a city in Victoria that continues to receive some of the highest numbers of planning applications annually

What we have instead is a system that has been deregulated so much and weakened to the point that there is hardly any certainty at all. What this results in is rampant speculation that leads to unaffordable and poor-quality housing. For example, a plot of land that could hold a five-storey building with, say, 30 apartments is routinely sold across this state by speculative developers as sites that can hold 10 storeys or 60 apartments, because the rules are uncertain and big property developers know how to game the system. The land is sold at an inflated price, predicated on this speculation, and the next landowner then needs to make sure that they make enough money off a development to cover those costs. Even though the council in that area may say, ‘We prefer a five-storey building because of all the strategic work that we have done over years to justify the different heights in different areas’, the developer puts in an application for an eight-storey building and passes on the inflated land costs to the new home owners. Meanwhile, deliberative developers, for example, who cap their profits to make housing more affordable for people are completely shut out of the market because they just cannot afford these inflated land prices

So who wins in this system? Those speculating on the system win while homebuyers and the community lose. No-one is saying, ‘Lock down our suburbs from providing more housing stock’. What this motion and motions like this say is that we have to find a better way to get more affordable and sustainable development outcomes across the board, because the stock we are getting is dog-box apartments with no light, ventilation or space to live in, and poor-quality interiors that deteriorate fast. They are reliant on fossil fuel intensive energy, pushing up utility prices and cost of living, all because successive planning ministers in this state, including this one, refuse to take the development industry on

the system is so skewed in the direction of rampant ministerial power which invariably favours big developers that the community has been left far behind. No wonder there is so much frustration in our community.

The Greens want Victoria’s urban planning system to place affordability, sustainability, democracy and certainty back at the centre of every planning decision. We want to make sure that we provide certainty by ensuring consistent controls. We want to protect our green wedges and the urban growth boundary, and to ensure residential zones are delivering the type of housing our community needs and wants. We want things like inclusionary zoning so that we can have more affordable housing across this state, and we want to restore the rights of our community in local decision-making. One of those reforms, for example, is reforming the VCAT appeals process to stop developers gaming the system so that VCAT becomes an administrative appeals body only rather than a merits review that is skewing the outcomes

We need to investigate the very worst of what is happening in our current system through a royal commission, something that the Greens have called for, and we have introduced a motion in this house to that effect



Hayes motion certainly has merit. We would however quibble with his assertion that councils’ planning schemes and laws are a result of what local communities want. The perfect example here is Glen Eira. We remind readers that Glen Eira introduced the residential zones without warning, without community consultation and without justification. They were hell bent on being the first council in the state to do so. The result is abysmal planning that is now acknowledged by the structure planning for Bentleigh, Carnegie and Elsternwick, where heritage areas are proposed to be rezoned from 4 storeys height limits to 2 storeys. The horse has bolted in many instances of course since countless of these streets  already havE 4 storey apartment blocks.

Even with the current structure planning processes,  community feedback has shown that the overwhelming majority of residents do not want 12 storeys. Nor have we had any valid empirical justification for such heights. Council has had the time to change the schedules for these structure plans. Instead we get drafts that maintain the 20% permeability requirement in GRZ areas as well as 25% in the minimal change areas. This flies in the face of promises made at the time of the Planning Scheme Review where site coverage, permeability, sustainability options like Water Sensitive Urban design were to be introduced. These things aren’t even on the horizon. VCAT has got nothing to do with these betrayals. That should be sheeted home to a council determined to facilitate more and more development and councillors who are either incapable or complicit in this venture.

So, when Hay speaks about ‘democracy’ and listening to residents, this does not apply in Glen Eira.

Finally, the examples provided by Hay (McKinnon Road, and Royal Avenue) got up at VCAT precisely because council had been derelict in coming up with any height control, guideline, preferred neighbourhood character statements that would stymie such developments. Thus from the gazetting of Amendment C25 in 2004 (which created the housing diversity, minimal change areas) council has done nothing of import to halt inappropriate development. And we still have to wait another 4 or 5 years for anything to happen to our neighbourhood centres. This has got nothing to do with VCAT and everything to do with Glen Eira City Council.