26 February 2011

Modern urban planning is notionally based around high level strategic planning for regions and major cities.

Such strategic plans are normally non-statutory government or council policy documents. Nonetheless they are used to inform decision-making about zones and development controls in statutory plans.

It is extremely difficult to de-politicise this part of the process, because zoning plans are, in theory, the consequence of qualitative judgement calls made on behalf of the whole community.

The nature of the planning systems rules and prohibitions

The modern planning system arose, in part, as a response to protests and civil disobedience campaigns of the 1970s. The planning system attempted to create a more ordered system to take into account the publics opinion of new development proposals. The philosophical underpinning of this approach is the idea of democratic deliberation of land use.

This is said to provide for more holistic decision-making practices and enable people to re-assert collective social control over urban development patterns; allowing for the widest consideration of the costs and benefits to society at large. This is said to require a commitment to the notion of consensus-building and citizenship rather than competition and consumerism and involves a subordination of private markets to collective democratic control.

As a result, town planning is not merely a process of aligning urban development to infrastructure capacity. It has morphed into a system of regulatory control ostensibly directed to re-shaping urban communities based on a stated ˜vision. Therefore when we talk about planning rules we are rarely referring to regulatory impositions based on strictly objective criteria (as would be the case with engineering or building standards). What we tend to be talking about is rules that are informed by subjective responses to competing arguments about the ideal shape, look and feel of urban communities. This aspect of the planning system has become entrenched.

For this reason, many of the rules and prohibitions inherent in the planning system are a consequence of:
¢ public opinion; and/or
¢ the ideological or philosophical disposition of various decision-makers,
¢ at the time that the rule was made.

This has led to a lack of logic and consistency.

You do not need to accept our word for it; consider the recent words of the majority in the NSW Court of Appeal. The Court said that a a search for logic and consistency within planning instruments is often doomed to fail ... [looking for] planning logic in planning instruments is generally a barren exercise.

Leslie A Stein, a barrister and former Chairman of the Western Australian Town Planning and Appeal Tribunal and former Chief Counsel to the Sydney Metropolitan Strategy, reflected on matter in his work: Principles of Planning Law, published by Oxford University Press. Stein observed that: Planners still envisage themselves to be agents of social change but their agenda ... depend upon effective implementation in legal instruments. Unfortunately, the devices of the regulatory system are primarily designed as a means of control restriction and permissibility. The implementation of planning agendas by restriction does not necessarily encourage and promote; it often prevents and denies.

Such rules and prohibitions lack the rigour of a technical standard. Unsurprisingly they can come under challenge when either:
¢ public opinion changes;
¢ the market demand for new development changes (e.g. the emergence of widespread consumer demand for apartment living in the largest capital cities); and/or
¢ the social and economic costs of a given restriction or prohibition have increased or have become more apparent.

The social and economic costs of rules originally imposed for subjective reasons often involve:
¢ inefficient use of public infrastructure;
¢ increased motor vehicle use;
¢ increased congestion;
¢ reduced competition in the retail sector;
¢ reduce competition amongst land owners to sell potential development sites to developers;
¢ an inadequate supply of housing in places of high demand;
¢ higher residential, retail and commercial rents; and
¢ lack of housing affordability.

In essence, planning decisions are subjective and will vary depending on how a decision-maker decides to weight the criteria used.

The NSW Land and Environment Court itself recognised this reality when it observed that: [T]here is room for opinions to differ in weighing the same objective criteria.

As long as public opinion or ideology is a guiding factor in setting planning rules and assessing projects against those rules, a high level of subjectivity will inherently exist in the system. It also means that ules will continue to be fluid because rules set by reference to public opinion or ideology will not stand robust scrutiny in the long run if/when it becomes apparent that they carry high social and economic costs.

For example, how dense should high density housing be? What proportion of suburbs should be re-allocated for apartment development? Should supermarkets be permitted in a particular community? Which is more important a high degree of solar access or park views? The practice of urban planning cannot offer any scientifically correct answers to such questions.

Ultimately, the decision taken will reflect the valued laden opinions of vocal members of the public and the community leaders who drive the decision-making process.

Attempts to remove politics from this part of this process will generally fail as there is no ˜science for technocrats to apply. However there is considerable value in reforming this part of the planning system to ensure that statutory rules truly reflect high level policies and do not stray into highly-detailed prescriptive controls. If such controls are necessary at all, they should be considered for adoption at a development assessment (planning permission) level in the context of a specific project.

For example, rules prohibiting apartment development, or only allowing low-rise apartment development, within the walking distance of high quality public transport services in Sydney, Melbourne, Brisbane or Perth are generally not tenable in a public policy sense. Ultimately such rules are likely to be set aside, as the costs of not doing so become increasingly apparent.

Similarly, formal and informal urban growth boundaries designed to prevent the outward expansion of major cities generally come under extreme pressure (as we have seen in Melbourne). This is because many members of the community are not truly prepared to give up on the idea of owning a detached house with its own backyard. Urban growth boundaries eventually place intolerable price pressure on that form of housing.

It will be development applicants (and their representatives) who highlight the social and economic costs of such arbitrary prohibitions to both government and the community. This has and will continue to contribute to a process where such rules are gradually revised to reflect modern community needs.

For this reason, the fact that planning rules are not stable and are subject to reasoned-argument and regular departure is evidence of the haphazard nature of existing rules and the inability to withstand robust scrutiny when high quality development proposals are put forward. This is one reason why strategic plans are often considered irrelevant by the governments that create them within only a couple of years.

Strategic plans are often wrong
Government strategic plans have never been particularly good at determining the locations and scope of population growth in different regions.

For example, belief in such planning led the Whitlam Government to embark on ambitious, expensive and spectacularly unsuccessful schemes to direct population growth to particular localities.

In 1973 Albury-Wodonga and Bathurst-Orange were designated as growth centres. It was said that Albury-Wodonga would become a second Canberra. Neither became the great inland centres envisaged by the Whitlam government. It is the most notable failure of planned/forced population growth.

Another example is provided by City of Cities: A Plan for Sydneys Future: Metropolitan Strategy (the Metropolitan Strategy). That document said that Sydney will need an extra 640,000 new homes between 2004 and 2031. This was based on the assumption that there would only be 980,000 extra residents added to the city between 2006 and 2031. However, revised population figures issued in October 2008 said that at least an extra 1.4 million residents will now be added in the same period. This figure is almost 50 per cent higher than the 2005 plan.

The dramatic escalation in Sydneys population forecasts illustrates the unreliability of strategic plans that stretch out more than a year or two into the future. However, these long-term plans, as wrong as they invariably are, have a profound impact on cities because there is a tendency to prohibit anything not required by the strategy. If the strategy underestimates the required housing - and housing growth in excess of the strategy has prohibited by a statutory instrument a shortfall in supply arises and housing becomes less accessible and less affordable.

Effective demand for housing by home-buyers is determined by a whole range of variables, including employment, the availability and cost of finance, and expectations of the rate of return from alternative investments. These issues also affect the supply side. Forecasts on the supply side are also impacted by the lack of consistent and complete data on land supply in the pipeline (particularly infill land), uncertainty about the rate of conversion from raw land to serviced lots and actual dwellings and the production capacity of the construction industry.

It is not possible for the government to dictate population growth and distribution in defiance of above factors. It is not possible for government to produce strategies which can accurately anticipate these inputs more than one or two years in advance (and even then the projections are unreliable due to the variability of market conditions). Its also not possible to anticipate these factors five, ten or twenty years in advance. Yet the current planning system has a tendency to prohibit, by statutory instrument, all that is outside the strategy suggests a naive belief in the accuracy of the crystal ball used to prepare such strategies.

For example, in 2008 the Urban Taskforce criticised elements of the draft local environment plan for Lane Cove for not taking sufficient advantage of opportunities to provide pedestrian friendly compact living communities around public transport nodes. Lane Cove Council Councils defence for the failure to permit great residential growth around public transport and town centres was that the plan was required to be prepared in order to satisfy residential and employment growth targets under the Metropolitan Strategy for Sydney.

The dominant view by councils and even key officers within state planning authorities. Planning authorities believe that they can reliably predict the future and will prohibit activities the regard as unnecessary as matter of course.

Regretfully, the development activities that are prohibited, with the benefit of hindsight, often subsequently turn out to have been necessary. This necessitates time-consuming and politically contentious changes to the law (rezonings) to accommodate specific projects as an almost routine feature of the planning system.

Strategic plans can never be sacrosanct
The exercise of discretion is a process that allows this robust scrutiny to take place and rigid rules to be varied. Every planning system does and should provide mechanisms where the existing rules can be questioned in the content of a particular proposal and varied where a sufficient case has been made out.

The mechanisms vary, in each jurisdiction, but typically every Australian planning system allows for very wide direction to be exercised in a rezoning decision, and more limited (but nonetheless generous) discretion to be exercised in development assessment. A final category of decision-making involves the exercise of no or minimal discretion and generally this not available to more complex developments.