D-Day for tortured DAs and convoluted DCPs

March 17, 2009

We all yearn for that time prior to 1997 ‘when the days were wide’: a time when Development Applications (DA) were so much less tortured.

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Recent changes to the planning legislation in NSW have come at a time of great turmoil for state politics in NSW. The attempt by Planning Minister Sartor, prior to his swift exit, to deliver wide-reaching reforms has presented the prospect of changes to the legislation even more dramatic than those we experienced in 1997/8, which aimed to make a complex system simpler, but ended up resulting in thickening the complication. The present changes are aimed at correcting those earlier errors perhaps.

We all yearn for that time prior to 1997 ‘when the days were wide’: a time when Development Applications (DA) were so much less tortured. The average number of DAs determined per council for the three years preceding the Planning Reform of 1997/8 was 255. In 1998/9, the number shot up to 694 and in 2000 the number shot up to 827 – tripling the number of DAs in the space of a few short years. This is a direct consequence of the earlier amendment to the legislation, which allows third party certifiers to verify Construction Certificates but in some councils also requires that a DA is submitted for everything including the front fence and the barbecue. Before 1997, the system allowed minor DAs to be dealt with under the Building Application System with no requirement for a DA.

During the period of the present legislation:
* Small scale DAs such as house extensions took an average of 57 days to determine
* The average house DA took 78 days to determine
* 60 percent of the DAs were for new homes
* 97 percent of DAs were valued under $1 million

Merit assessment coupled with consulting neighbours, in my simple view, unnecessarily caused the delays in simple DAs; everyone has different taste and everyone can exercise their rights to it, but while these considerations are important, they have been found almost impossible to regulate. For instance, some codes have gone so far as to nominate a certain series of colours in Pascol paint as the only colour range available (refer Maianbar/Bundeena Development Control Plan (DCP) – Sutherland Shire Council) – it is then subject to the discretion of officers and councillors as to whether or not that particular clause is relevant.

It is largely thanks to this element of discretion that for the past 10 years in NSW complete compliance with the DCP has not guaranteed an approval. There has therefore never been any reason to create codes that generate, with seriousness, absolute or finite technical requirements until the landmark Court Case of Stockland vs. Manly Council (2004) where the Land and Environment Court ruled that: ‘Consistency of decision-making must be a fundamental objective of those who make administrative decisions. That objective is assisted by the adoption of development control plans and the making of decisions in individual cases which are consistent with them. If this is done, those with an interest in the site under consideration or who may be affected by any development of it have an opportunity to make decisions in relation to their own property which is informed by an appreciation of the likely future development of nearby property.’ (1)

Up until that date, very little was clear in terms of the weight that one could place on a Development Control Plan and this, regretfully, was the key planning instrument relating to the development of smaller projects. The drafting of these DCPs is usually in poor English and represents poor planning practice in my view, by way of the inclusion of often-conflicting information. They are usually instruments that show little understanding of the design process and are often confused in their intent. By way of example, I cite the Leichhardt Council’s DCP, which has had an average of seven clause amendments made to it every year in the eight years since its creation. The very first amendment in 2001 (one of three amendments in that year entailing changes to a total of 23 clauses) included changing something that profiled an existing suburb. This is surprising when one considers that this amendment simply changed the DCP’s view of its own earlier observations about the character of a place, made within months of its initial publication.

Indeed, Leichhardt Council is very representative of the malaise endemic in the current planning system. Leichhardt Council sits directly next to Sydney City Council and yet the planning regime reflects enormous differences in attitude and competence. Nothing can better demonstrate this than the figures themselves. In 1996, Leichhardt Council’s mean gross DA period was 185 days. The state average (which is still slower than the required 42 days under the Planning and Assessment Act) is 76 days. Sydney City Council in the same period averages 47 days, with 2610 determinations made in 2006/7 for $2.6 billion worth of work. By comparison, Leichhardt Council is responsible for less than half of the DA’s determined by Sydney City Council, and even less in terms of dollar figures.

The most recent system facilitated tardy approval processes thanks to an inadequately defined merit system and gave no certainty, consistency or definition to the outcome. Possibly one of the few state Ministers with a point to make, Sartor presented a proposal that would combat the inertia and ineptitude associated with DAs. The general idea is that there will be set rules state-wide which will be finite and reliable and not based on conjecture, rather they will be based on such things as numbers – the higher order according to Pythagoras; things that can be understood; ‘this height, that setback, that amount of space, those cars’ etc. If you adhere to these rules, which should be clear and simple, then you can ask for a compliant development approval from an expert. Nothing should prohibit the quick granting of consents. Commercial turnaround times will be quicker than the council’s un-incentivised approach and in Melbourne, where a similar system has run for some time, there has not been a grinding halt in the creation of excellent work; in actual fact you could argue quite the contrary, when you consider the work of Wardle, Godsell et al.

A draft instrument for discussion was produced in May 2008, remarkable for the absence of motherhood statements about ‘character’ and ‘style’. Rather, it is full of numerical restrictions. For instance, on a 600 square metre site in the suburbs, you are required to have 20 percent of private open space. Chapter 2.3 refers to numerical setbacks. Building Height is in table 2.3.1. And then there is the other category of ‘Exempt Development’. To date, there are more than 150 councils in NSW and an equal number of rules as to ‘exempt and complying development’, being development that requires no consent at all. For instance in Sutherland Council, if you want to create a barbecue, a fence, a carport, a letterbox or anything approximating this, you technically require a DA. You need to engage an architect or a draftsperson, you need to provide a short Statement of Environmental Effects and you need to wait for the numerous other applications to be processed. Indeed, Sutherland has so many applications that it has become somewhat of a processing house; processing applications that will affect no one, will not cast shadows on anyone’s backyard and will eventually be approved as a matter of course.

The proposed legislation sensibly doesn’t apply to any matter that is environmentally sensitive, or to areas such as Paddington, which are Conservation Zones. Also, the system would not be compulsory; if you wish, you can take the labyrinthine route and go to Council (be sure to take a ball of wool so that you can escape from the Minotaur at the end).

On the other hand, Councils have had 10 years to demonstrate that they are capable of administrating the old regime, and amidst numerous corruption cases (Rockdale, Wollongong, Liverpool), council sackings and threatened sackings, their ability to do so has clearly been found wanting.

There are people who would offer an opposing view, but then these people do not offer a solution to what is obviously a problem. Elizabeth Farrelly in her column (2) in the Sydney Morning Herald earlier in the year spoke like a tired community activist; worried about the personal investment rather than the common good, but saying the opposite in a puff of air in that inimitable yet eloquent style we have learnt to love for want of a better alternative.

If there is a criticism to the new legislation it is not in its intent; rather, it is, in my view, in its making. The legislation aims to amend a poor instrument, made poor by its numerous incremental changes. Perhaps a better way to have seen it through would have been to throw all of it out and rewrite it; but politics deals with change in a strange way and timing is more important to it than to our work as architects; time being the friend of great work and the enemy of the wrong political decision.

The new legislation removes the political nature of small matters altogether. This is threatening to those who feel that planning and the decisions about architecture sit in the realm of the people; the ‘people’, whatever this entity may be (usually the mob), saving us from the expert who after all, as Farrelly puts it, is paid by the bad people, those all powerful, wealthy developers. There may well be a grain of truth to Farrelly’s notes, but there is also something misleadingly reductive about it. Consider again that 97 percent of DAs in the last decade were valued at less than $1 million, and the petty neighbour disputes now clogging our courts and councils. Perhaps this legislation might save us from ourselves.

(1) Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 revised – 01/10/2004
(2) ‘Its D-Day for Democracy, Developers and Design’ (SMH 11 June 2008)

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