ACT Planning Review Report · PDF file4.5 Port Phillip: Toolkit for ... engagement in the ACT planning and development system, ... policy issue and/or development proposal • a handbook

REVIEW OF STAKEHOLDER ENGAGEMENT IN ACT PLANNING

Report on Consultancy for the ACT Government

National Institute for Governance

University of Canberra

13 April 2004

R E V I E W O F S T AK E H O L D E R E N G AG E M E N T I N AC T P L AN N I N G

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National Institute for Governance 13 April 2004

CONTENTS

EXECUTIVE SUMMARY ......................................................................................................1

Background and Purpose ............................................................................................................1

Structure of the Report.................................................................................................................1

Summary Findings and Recommendations.................................................................................1

CHAPTER 1: SCOPE AND METHOD ..............................................................................4

1.1 Introduction ..........................................................................................................................4

1.2 Scope...................................................................................................................................4

1.3 Outputs ................................................................................................................................5

1.4 Method.................................................................................................................................5

CHAPTER 2: GOVERNANCE IN THE PUBLIC SECTOR AND IN PLANNING ...............7

2.1 Governance Frameworks ....................................................................................................7

2.2 Principles of Public Sector Governance ..............................................................................8

2.3 Planning and the Public Interest..........................................................................................8

CHAPTER 3: LITERATURE ON STAKEHOLDER ENGAGEMENT............................... 10

3.1 Rationale: Addressing the ‘Democratic Deficit’ .................................................................10

3.2 Defining Terms ..................................................................................................................10

3.3 The Importance of Trust ....................................................................................................11

3.4 Consultation in the Policy Process ....................................................................................12

3.5 Models of Community Participation ...................................................................................12

3.6 The Appropriate Unit of Consultation ................................................................................15

3.7 e-Governance ....................................................................................................................16

3.9 Risk Management and Shared Governance .....................................................................18

3.10 Guidelines for Effective Consultations...............................................................................18

3.11 The Context of Planning and Planners as Catalysts for Change ......................................19

CHAPTER 4: BETTER PRACTICE EXAMPLES............................................................ 21

4.1 Assessing Better Practice..................................................................................................21

4.2 Brisbane.............................................................................................................................21

4.3 South Australia ..................................................................................................................27

4.4 New South Wales ..............................................................................................................29

4.5 Port Phillip: Toolkit for Participatory Consultation Processes ...........................................32

4.6 Tasmania: Integrated Development Applications Facility .................................................34

4.7 Vancouver: Sound Principles for Community Engagement ..............................................35

CHAPTER 5: STATUTORY AND NON-STATUTORY PROCESSES OF COMMUNITY ENGAGEMENT IN ACT PLANNING........................................................ 36

5.1 The Legal Framework........................................................................................................36

IN-CONFIDENCE


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5.2 Statutory Consultation Processes .....................................................................................39

5.3 Non-Statutory Consultation Processes .............................................................................41

CHAPTER 6: STAKEHOLDERS’ VIEWS....................................................................... 47

6.1 Stakeholder Consultation Process ....................................................................................47

6.2 Key Issues Raised by Stakeholders ..................................................................................47

6.3 Responding to Stakeholder Views.....................................................................................52

CHAPTER 7: FINDINGS, OPTIONS AND RECOMMENDATIONS ................................ 53

7.1 General Findings ............................................................................................................... 53

7.2 Specific Findings................................................................................................................54

7.3 Discussion .........................................................................................................................56

7.3 Options for Action ..............................................................................................................60

7.4 Recommendations.............................................................................................................64

BIBLIOGRAPHY AND REFERENCES............................................................................... 66

Attachment A: Extracts from the ACT Planning and Land Act 2002 ............................. 69

Attachment B: Statement of Planning Intent .................................................................. 71

Attachment C: Stakeholder Consultations for the Review............................................. 76

Attachment D: Details of Stakeholder Views Reported to the Review Team................ 77

National Institute for Governance Review Team:

• Professor Meredith Edwards

• Dr Robyn Seth-Purdie

• Dr Russell Ayres


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EXECUTIVE SUMMARY

Background and Purpose This Report has been prepared by the National Institute for Governance (NIG) for the ACT Minister for Planning to assist in consideration of issues around community consultation and engagement in the ACT’s system of planning and development. The Study on which this Report is based was commissioned in the wake of the Minister’s decision in late 2003 to abandon attempts to set up Community Planning Forums (CPFs) to replace Local Area Planning Advisory Councils (LAPACs). The main reason the proposed CPFs did not go ahead was because of a lack of sufficient nominations for membership. Because of this ‘hiatus’ in community consultation arrangements, the Study was conducted as quickly as possible, with the bulk of the work taking place in the first few months of 2004.

In accordance with the project brief, this Report addresses the effectiveness of community engagement in the ACT planning and development system, including statutory and non-statutory aspects (but with an emphasis on the latter).

Structure of the Report Set in the context of a ‘governance’ approach (see Chapter 2), the Study consisted of four main elements:

(1) a brief survey of the key literature on community engagement in government decision-making in general, and in planning policy and implementation in particular (see Chapter 3)

(2) an examination of selected examples of better practice in Australia and overseas (see Chapter 4)

(3) a study of the main elements of the ACT’s community consultation processes in planning and development (see Chapter 5)

(4) consultations with the main stakeholders in the system (see Chapter 6)

On the basis of the information and views gathered, the Review Team drew a series of conclusions about the system in the ACT, and developed a set of options for action (see Chapter 7). From among these options we have proposed a set of recommendations (Chapter 7).

Summary Findings and Recommendations Our general findings (detailed in Chapter 7) are that community consultation processes in relation to planning in the ACT are:

• characterised by strengths worth retaining and building on, including a general commitment to better planning outcomes among the stakeholders and officials, a clear and detailed Statement of Planning Intent by the Minister, and a city-state scale that allows reform and change

• but are also characterised by low levels of trust and confidence among stakeholders

• not always conducted in a transparent and accountable way


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• not always carried out in such a way as to get the best match amongst purpose, technique, timing, target group, and resources

• subject to problems in communications and the effective dissemination of information

• not able to attract the involvement of a representative cross-section of the community

• conducted through multiple layers of consultation, which are not seen as productive

• subject to differing views as to who has a right to carry out development on their own property and in what circumstances, and on who has a right to be consulted about proposed developments and in what circumstances

• compromised by a lack of certainty about planning decisions for industry or the community

• conducted in such a way as to not take into adequate account the social, economic, and environmental impacts of planning decisions.

In the light of these findings, and drawing on the literature and better practice examples examined for the Study, the Review Team has made three ‘levels’ of recommendation (details in Chapter 7):

Level One: Recommendations for Specific or Immediate Action

1. Building on the Minister’s Statement of Planning Intent, develop in collaboration with stakeholders:

• a code of conduct for planners

• guidelines for conducting consultations, organised around the level and nature of the policy issue and/or development proposal

• a handbook of consultation techniques – including techniques for engaging inclusively with the community

• A stronger role for the Planning and Development Forum in contributing to policy development and the assessment of major development proposals.

2. Review and simplify planning legislation to make it more transparent and certain.

Level Two: Longer-Term Proposals

Based on the outcomes of the level one actions:

• Establish advisory committees in each town centre.

• Review appeal processes to provide a sliding scale from agreement through negotiation, mediation, and adjudication. Train staff to achieve the best results for proponents and opponents at the lowest level of conflict.

• Review third party appeal rights to minimise appeals from decisions made in accordance with sound consultation and other processes and in accordance with planning statutes and regulations. An independent review panel might provide a cost-effective alternative to some appeals.

• Create an independent planning audit process to increase stakeholder confidence in the probity and accuracy of decisions.


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• Establish separation between administrative units responsible for assisting proponents to reach agreement with stakeholders and meet planning standards and those responsible for making decisions on development applications.

Level Three: Areas for Further Consideration

• Set up ACTPLA shop-fronts in each Town Centre.

• Review DA processes to quantify HQSD guidelines where possible.

• Set up a residents’ reference panel on planning and other issues.

• Provide some Town Council type delegations to Town Centre Committees.


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CHAPTER 1: SCOPE AND METHOD

Outlines the background to the project, its terms of reference, including the groups of stakeholders to be consulted, and describes the method used by the Review Team.

1.1 Introduction In late 2003, the ACT Government commissioned the National Institute for Governance to provide advice to the Minister for Planning and to the ACT Planning and Land Authority (ACTPLA) on the effectiveness of community engagement in the statutory and non-statutory aspects of the ACT planning and development system. The emphasis of this Report is on the non-statutory aspects of the system, as ACTPLA has advised that there is a separate analysis of a major component of the statutory planning process – the development application process – that is expected to report to the Authority soon.

This Study was commissioned following the Minister’s decision to suspend implementation of new Community Planning Forums, which had been instituted in place of the former Land and Planning Advisory Committees (LAPACs). The Study, therefore, constitutes an important element in the Minister’s decision-making on how to improve and sustain effective community consultation in the ACT on planning and development matters. It was important that the Study be carried out by an independent review team and that the results of the Study be made available to the Minister as soon as possible to facilitate decision-making in this important and high-profile are of government in the ACT.

The Report begins with this Chapter on the scope and method used in the review. It progresses to a description of governance principles and frameworks (with particular reference to the public sector and planning), and examines selected literature on stakeholder engagement and several examples of better practice in the area of community engagement in planning and development. It then provides an overview of current statutory and non-statutory processes of community engagement in the ACT, summarises the results of the Review Team’s consultations with relevant stakeholders, and concludes with the Study’s detailed findings and recommendations. A selected bibliography has also been included.

1.2 Scope The scope of the Study includes examination of the following elements:

• Engagement in statutory related consultation

• Neighbour and broader community involvement in formal development applications (DAs)

• Public notification of DAs

• Consultation at the pre application stage (High Quality Sustainable Design [HQSD])

• Engagement of the community in non-statutory related planning

• Involvement of individuals

• Involvement of community organisations including residents associations, community councils, PACTT, former LAPACs

• Involvement of minority groups and individuals

• Involvement of Industry, professional and peak bodies


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These elements were examined in terms of the following characteristics:

• Accessibility – in terms of the community’s ability to understand the matters they are being consulted on, being able to identify appropriate assistance and being able to attend consultative exercises

• Effectiveness of community engagement with all aspects of planning policy and implementation

• Timeliness – in terms of when in the process stakeholders are being engaged

• Transparency – in terms of whether stakeholders feel that their input is valued and being taken into consideration

• Representation – in terms of whether stakeholders feel that bodies such as the community councils and the former LAPACs represent their interests appropriately and if not is an additional body required.

Within the timing and resource constraints of the Study, members of the community, the various community organisations and industry groups were to have input into the Study.

1.3 Outputs Under the specifications determined by the ACT Government, the Study was required to deliver the following outputs:

(1) An audit of all statutory and non-statutory planning processes that exist in the ACT (along with informal community forums), used to engage the community in determining appropriate policy and development outcomes, identifying strengths and weaknesses.

(2) A brief survey of good practice (or poor practice) in selected jurisdictions in Australia and internationally.

(3) A report which identifies any gaps or other problems in the process, particularly having regard to the level and quality (effectiveness) of consultation under the previous LAPACs and that which was intended for the CPFs.

(4) A report on the effectiveness of the Minister’s Planning and Development Forum.

(5) Appropriate recommendations for the Minister’s consideration in relation to non-statutory community planning advisory committees.

1.4 Method The review project effectively commenced in January 2004 with planning and design work, and some preliminary discussions with the client. A brief survey of the literature on community engagement in consultation in government policy making, particularly in planning and development, was conducted. Some examples of better practice in community engagement in planning from selected Australian and overseas jurisdictions were examined.

Group consultations were held with four main groups representing, respectively:

(1) Community councils and community planning, heritage and environment associations

(2) The social welfare sector – special needs and marginalised groups


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(3) Building, architecture and planning professionals, and business and developer organisations

(4) ACT government, including the Minister for Planning, ACTPLA and formal planning advisory bodies.

In addition, interviews were held with selected academics and planning consultants.

Details of organisations and individuals consulted are provided at Attachment C.


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CHAPTER 2: GOVERNANCE IN THE PUBLIC SECTOR AND IN PLANNING

Outlines concepts and principles of governance in the public sector and the use of a ‘governance framework’ to map an organisation’s compliance and performance regime.

Considers how planning raises questions about the identification and pursuit of the public interest by ministers and officials. Provides a useful definition and set of planning governance principles.

2.1 Governance Frameworks A commonly quoted concept of governance in the public sector refers to “the processes by which an organisation is directed, controlled and held to account” (ANAO 1999). A more recent formulation takes into account a broader view of an organisation and its relationship to other players:

Governance encompasses agency management, the structure and operation of boards, as well as the values, behaviours and relationships between organisations and their stakeholders. (Barrett 2003)

Tricker (1984) characterises the task of “governance”, as opposed to “management”, as that of determining whether an organisation is being run well. The criteria that are used to form this judgement are surprisingly consistent across business, public and not-for-profit sectors. The recent history of corporate collapse and the salutary experience of failures in other sectors have led to the development and application of good governance standards – which perform the double role of opening up the activities of organisations to outside scrutiny, and of encouraging organisations to adopt processes that are likely to improve performance and reduce the risk of catastrophic failure. These standards form part of the governance framework within which organisations operate.

A governance framework for any system of decision-making should encompass the following elements:

• Principles, which describe the basic values of the organisation that should characterise all of its activities.

• The body of relevant law, including state and federal statutes and regulations, common law, case law and applicable corporate governance codes that a person performing the duties of a particular public office is obliged to apply. To these should be added applicable Commonwealth-State agreements, memoranda of understanding between agencies (or ministries), and international agreements.

• The policy and operating environment, which refers to both the policy goals of the organisation, knowledge about the interventions that might achieve them, and an appreciation of the political, budgetary,1 and other factors that might need to be taken into account when planning and implementing strategies.

• Good governance mechanisms to promote achievement of the goals in accordance with the principles and relevant law.

1 State organisations reliant on state budget funding may need to be aware of the overall budget situation when developing their own strategic and business plans. For government business enterprises, the relevant consideration is their projected balance sheet.


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2.2 Principles of Public Sector Governance The principles of public sector governance describe the basic values of the organisation that will guide all of its operations and help ensure that they are in the interests of the main stakeholders – the members of the public. The following principles are commonly found amongst corporate governance codes and public sector governance standards (see, for example: IFAC 2001, ANAO 2003, Standards Australia International 2003, Public Accounts and Estimates Committee 2002):

• Transparency – can mean clearly articulated criteria for making decisions, as well as openness to scrutiny or to new ideas.

• Integrity – covers respect for the law and for others, as well as honesty, and impartiality.

• Accountability – implies clear assignment of roles and responsibilities and requires that all parties covered by the framework be answerable for their decisions and their personal behaviour.

• Stewardship – covers the fiduciary responsibilities of the Executive: lifting performance standards, making the most economical, that is, efficient, use of available resources, and enhancing the value of the assets (capital, financial, human, and environmental) over which they exercise control on behalf of the polity.

• Participation – refers to the desirability of engaging interested parties/ stakeholders in developing and implementing policy. Given that state-owned institutions are designed to deliver benefits to the communities they serve, it makes sense to give communities a say.

• Sustainability – means that best endeavours will be made to ensure that future assets (environmental, economic, or social) will be enhanced, not diminished, by today’s activities.

These are similar to the principles set out in the Australian National Audit Office Better Practice Guide (2003), which provide fuller descriptions of most of the principles listed above, but list efficiency and leadership as separate values, and do not include participation and sustainability.

2.3 Planning and the Public Interest Controversies about planning and development often raise questions about the public interest. How should it be defined in such a way as to take into account changes in knowledge and taste? How does it relate to the duties of officials who must honour statutory obligations whilst being responsive to the government of the day? How can the political executive pursue the public interest simultaneously with both individual and party political interests?

Leaving aside vexed questions about conflict of interest for elected and appointed officials, we would propose the following as a useful working definition of the public interest in the planning context:

… the public interest is that which supports and promotes the good of society as a whole (as opposed to what serves the interests of individual members of


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society or sectional interest groups). (Ombudsman and Information Commissioner for Ireland 2003)

Box 1 below contains a guide for planners seeking to interpret their duty to serve the public interest. It nests within the principles of public sector governance set out in the previous chapter, and encourages a positive approach to consultation.

Box 1

A Planner's Responsibility to the Public

A planner's primary obligation is to serve the public interest. While the definition of the public interest is formulated through continuous debate, a planner owes allegiance to a conscientiously attained concept of the public interest, which requires these special obligations:

1. A planner must have special concern for the long-range consequences of present actions.

2. A planner must pay special attention to the inter-relatedness of decisions.

3. A planner must strive to provide full, clear and accurate information on planning issues to citizens and governmental decision makers.

4. A planner must strive to give citizens the opportunity to have a meaningful impact on the development plans and programs. Participation should be broad enough to include people who lack formal organization or influence.

5. A planner must strive to expand choice and opportunity for all persons, recognizing a special responsibility to plan for the needs of disadvantaged groups and persons, and must urge the alteration of policies, institutions and decisions which oppose such needs.

6. A planner must strive to protect the integrity of the natural environment.

7. A planner must strive for excellence of environmental design and endeavour to conserve the heritage of the built environment.

AICP 1978


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CHAPTER 3: LITERATURE ON STAKEHOLDER ENGAGEMENT

The literature is reviewed, with a focus on why, when, how, and to what extent governments should involve citizens in policy and decision-making. Several models are discussed.

3.1 Rationale: Addressing the ‘Democratic Deficit’ The Young European Federalists (JEF) claim to have been first to record use of the term ‘democratic deficit’ in a Manifesto published before the first elections to the European Parliament in 1977. In large part the ‘deficit’ represented a perception of systemic failure on the part of elected governments to engage with citizens in order to meet their needs.

The spectacular increase in the number of campaigning pressure-groups, citizen’s action groups, and even spontaneous revolts is a symptom of the inadequacy of the current system to take into account people's needs. Be it in the dole queue, in schools and universities, in underprivileged regions, in the neighbourhood of a proposed nuclear power station, at the place of work, in a migrant workers’ ghetto, or on the proposed route of a highway, people are fighting arbitrary decisions taken without regard to their needs and without them having participated in the making of a decision that affects their own lives. (JEF 1977 Chapter One)

To solve this problem democratic processes would need to be extended from the national to the local level:

To give people control over their own lives and to give the word “democracy” a meaning, fundamental changes are needed … There needs to be a fundamental shift of power down to the lower levels, closer to the people and to the problems. There needs to be an introduction of democracy at the place of work … and in the local community. (Ibid.)

Addressing the ‘democratic deficit’ appears to be the driving force behind the emergence of a range of mechanisms designed to increase the quality and quantity of interactions between decision-makers in government and those affected by them.

3.2 Defining Terms The OECD Handbook (2001) explores ways of enhancing relationships between national governments and their citizens in policy-making. However, its message can be extended to policy-making and service delivery at local, regional or international levels. It distinguishes roles on a spectrum of government consultation – ranging from providing information to accepting advice, to power sharing. These are defined as follows:

Information

Government disseminates information on policy-making on its own initiative – or citizens access information upon their demand.

In both cases, information flows essentially in one direction, from the government to citizens in a one-way relationship.

Examples are access to public records, official gazettes, and government web sites.

Consultation

Government asks for and receives citizens’ feedback on policy-making.


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In order to receive feedback, government defines whose views are sought on what issue during policy-making. Receiving citizens’ feedback also requires government to provide information to citizens beforehand. Consultation thus creates a limited two-way relationship between government and citizens.

Examples are comments on draft legislation, and public opinion surveys.

Active participation

Citizens actively engage in decision-making and policy-making.

Active participation means that citizens themselves take a role in the exchange on policy-making, for instance by proposing policy-options. At the same time, the responsibility for policy formulation and final decision-making rests with the government. Engaging citizens in policy-making is an advanced two-way relation between government and citizenship based on the principle of partnership.

Examples are open working groups, laymen’s panels and dialogue processes.

Source: OECD (2001 pp. 15–16)

Several additional definitions are needed in order to broach the literature on stakeholder engagement. The following are proposed:

Stakeholders: People affected by government policy or decision. They may include vested interest groups representing, business, industry or professions, particular community segments or marginalised of disadvantaged groups, non-government organisations who act as advocates on issues such as welfare, the environment or heritage. Ministers and the staff of planning and development agencies are also stakeholders, as are members of the community at large.

Communication: information provision or information sharing/passing information – one way or two-ways, in a dialogue. The management of this process may be termed “public relations” (eg Grunig and Hunt 1984).

Accountable consultation: Actively seeking input from stakeholders and providing feedback on how it has been treated and why.

Engagement: deliberately inviting interest or participation in the processes of policy-making, such as needs identification, provision of feedback on performance or new policy-proposals, or involvement in decision-making.

3.3 The Importance of Trust Work on good governance, like that from the field of public relations some decades earlier, emphasises the importance of relationships of trust between and within organisations and the constituencies they serve. Barrett’s definition of governance (see Chapter 2 above) refers to “values, behaviours and relationships between organisations and their stakeholders”. Simon describes the cost of lost trust within an organisation, and how relatively easy it is to squander a hard won reputation: Credibility, as we have all seen, is slow to build and quick to dissipate (2002 p. 18).

This message applies equally to external stakeholder relationships. Grunig & Hunt (op. cit) recommend that an organisation concerned to optimise its public relations aim to minimise the amount of information it does not share with its public.


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3.4 Consultation in the Policy Process The ‘policy-cycle’ model (eg. Edwards 2003 p. 48) moves continuously through the identification of issues, to analysis, to consultation, decision-making, implementation, and evaluation to the start of the cycle. Processes of stakeholder engagement, information provision, dialogue or participation, could feed into any stage.

To achieve a successful consultation, governments need a good fit between purpose, timing within the policy cycle, choice of stakeholders and mechanism. However, being candid about purpose, providing comprehensive, accurate and accessible information, and providing follow-up so that stakeholders can see how a decision has been affected by their input, are critical to maintaining a high level of trust.

3.5 Models of Community Participation The significance of trust is well-represented in one of the most frequently cited models of community consultation – ‘Arnstein’s Ladder’ (Arnstein 1969), which extends from non-participation on rung one, to shared decision-making or even delegation to the community on the top (see Table 1 below).

Table 1: ‘Arnstein’s Ladder’

8 Citizen Control “Have-nots” handle the entire job of planning, policy making and managing a programme e.g. neighbourhood corporation with no intermediaries between it and the source of funds. The model still requires other elements of good governance eg integrity transparency and accountability.

7 Delegated power Citizens holding a clear majority of seats on committees with delegated powers to make decisions. Depending on the processes of representation and reporting, the public may now have the power to assure accountability of the programme to them

6 Partnership Power Power is in redistributed through negotiation between citizens and power holders. Planning and decision-making responsibilities are shared e.g. through joint committees.

5 Placation/Justification For example, co-option of hand-picked 'worthies' onto committees. It allows citizens to advise or plan but retains for power holders the right to judge the legitimacy or feasibility of the advice.

4 Consultation Seeking input

For example in: attitude surveys, neighbourhood meetings and public enquiries. Offers opportunities for genuine exchange and feedback, which may not be taken up. There may be no obligation for l.

3 Informing A first step towards participation, but there is not necessarily a channel for feedback.

2. Treatment Patient/client/recipient is a passive recipient of assistance from a paternalistic provider. Some real needs may be targeted, but capacity building is ignored.

1. Manipulation Public support is achieved through manipulation, without regard to citizens’ needs and interests.

Source: Adapted from Wilcox (1998), after Arnstein 1969.

The ladder metaphor implies a desirable progression from manipulation to citizen control. A similar value judgment underpins the participatory planning process model in Table 2 below,


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which depicts a spectrum from defensive and unresponsive government at the left, to a government-citizen partnership at the right.

Table 2: Participatory planning process model

Non-participation

Manipulation & Therapy

One-way communication

Tokenism Collaborative processes

Community empowerment

Decide Announce

Defend

Public Relations marketing

Public Information

Consultation Participation Co-production

Source: Institute for Participatory Planning 1981 reported in Penman and Wagner (1999 p2)

These models may be helpful in encouraging Ministers and government officials to undertake critical self-analysis about the purpose of their interactions with stakeholders. However, they gloss over a critical issue:– one of the major purposes of representative government is to arbitrate amongst competing interests. The OECD’s Handbook on Information, Consultation and Public Policy-making (OECD 2001) prefaces its advice on the conduct of participative governance with these observations:

Government’s task is to govern. To make policy – there is no doubt about it. Information, consultation and active participation are not a replacement for government taking initiatives or deciding. Government has a leadership role, and citizens expect government to fulfil it … Governments can practice leadership in two ways. They can either practice leadership ignorant of citizens’ direct concerns and input. This gets governments into crises of lack of trust. Or governments may practice leadership open to citizens’ concerns and input. This gives government the chance to tap into wider resources of citizens and civil society in order to develop better policies and gain more trust and legitimacy. It is in line with an informed and collaborative kind of leadership that balances leading and listening. (op. cit. pp 22–3)

Thus, a government concerned to develop policies that are well-informed and well-tuned to the needs of the community, must determine when, how and with whom to consult. It must decide when to take decisions, and when to delegate or to share power. But it must do so in a manner that is worthy of trust.

Le Moigne et al (1994 p. 10) represent the levels and roles of stakeholder participation in one policy area characterised by multiple, competing interests – water resources management – as shown in Diagram 1 below.


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Diagram 1: Participation Levels and Roles

Source: Le Moigne et al (1994)

The Le Moigne model invites consideration of the levels of expertise and accountability required of those undertaking various roles.

Bishop & Davis (2002) provide critical analysis of a number of models of ‘participation’, which, they conclude, is a strongly contested concept. They reject models such as Arnstein’s ladder, which imply a continuum of choice, as too simplistic, although they recognise the value in an approach described by Shand & Arnburg (1996) as a “continuum of management techniques” (op. cit. p. 20). This approach allows linking of a particular purpose to an appropriate consultation instrument, as illustrated in Table 3 below.

Table 3: Purpose of consultation and appropriate instrument

Information Consultation Partnership Delegation Control

Surveys

Focus Groups

Public information campaigns

Key contacts

Interest group meetings

Town Hall meetings

Circulation of proposals

Public hearings

Advisory committees

Policy Committees

Public inquiries

Impact assessment

studies

Referenda

Source: Bishop & Davis (2002) p. 21

However, this model too fails to capture, inter alia, the “discontinuous nature of policy problems” (Ibid.). Bishop & Davis conclude that:

There is no single methodology for policy participation and no shared theoretical base. Participation is shaped by the policy problem at hand, the techniques and resources available and, ultimately a political judgment about the importance of the issue and the need for public involvement. (Ibid.)


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They propose a discontinuous classification based on a study of current practice – and thus temporary in character. Table 4 below set out their “map of participation types”.

Table 4: Map of participation types

Participation Type Objective Key Instrument Limitation

Consultation To gauge community reaction to a proposal and invite feedback

Consultation is only participation when information gathered can influence subsequent policy choices

Key contacts

Surveys

Interest group meetings

Public meetings

Discussion papers

Public hearings

Delay between consultation and outcomes

Communities feel betrayed if they do not like the decision

Expensive and time consuming for complex decisions

Partnership Involving citizens and interest groups in aspects of government decision-making

Advisory boards

Citizens advisory committees

Policy community forum

Public inquiries

Issue of who can speak for a community

Bias toward established interest groups

Legitimacy issues with those excluded form the process

Standing Allowing third parties to become involved in the review process

Review courts and tribunals

Open and third party standing

Statutory processes for social and environmental impact assessment

Only relevant for those issues which come to court

Expensive and time consuming

Consumer choice Allowing customer preference to shape a service through choices of products and providers

Surveys, focus groups

Purchaser/provider splits

Competition between suppliers

Vouchers

Case management

Relevant only for service delivery issues

Control Hand control of an issue to the electorate

Referendum

“Community parliament”

Electronic voting

Costly, time consuming and often divisive

Are issue votes the best way to encourage deliberation?

Source: Bishop & Davis (2002) p 27

3.6 The Appropriate Unit of Consultation Catt & Murphy (2003) canvas the benefits variously ascribed to public consultation –including improved quality of decision-making, minority representation and legitimacy. From a consideration of the relevant “community of fate”, roughly defined as “That segment of the population most likely to be impacted on by the policy in question, or that is otherwise taken to have a legitimate stake in a particular decision-making process” (2003, p. 410).


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The community of fate (another useful term suggested by Udan is “planning community”2) may be a community segment, or the public as a whole. Cat & Murphy propose a matrix based on role and method of selection to categorise the voices given to various groups within a policy process. They suggest three main roles as follows:

Synthesis: Several groups are invited to deliberate on the issue such that in addition to presenting arguments they also aim to reach some agreement on a solution acceptable to all. Government may take part or just receive the end result. A focus group of stakeholders or a citizens’ jury fall into this category.

Contestation: Several groups are invited to present evidence and to contest evidence provided by others. Public meetings fall within this category.

Provide information: Groups are invited to present evidence that may include facts, views, values and preferences. Submissions on a plan and opinion polls fall within this category. (Op.cit. p. 417)

The Policy Dialogue approach (Zussman 2003) falls into the synthesis category above. It is used to seek workable policy solutions where the issues have proven intractable or sensitive. The process is described in Box 2 below.

Box 2: Policy Dialogue

3.7 e-Governance There is a great deal of national and international interest in ‘e-governance’ forms of community consultation. Most governments in the developed world have strategies in place to use the new information and communication technologies (ICTs) as vehicles for (a) providing information to citizens and clients and (b) conducting business transactions (such as benefit applications, tax returns, etc) with individual citizens. The next ‘phase’ in this process would seem to be using ICTs as vehicles for engaging citizens as citizens, consulting them on government policy issues and problems, providing feedback on progress in policy deliberation processes, and generally using the capacity of the new technologies to facilitate interactive exchanges - discussions - with large numbers of citizens (or at least those with access to the requisite technology and the time and inclination to participate).

As the United Nation’s recent World Public Sector Report: E-Government at the Crossroads 2003 suggests, ‘e-participation’ is a ‘special case’, especially because the new technologies are both a challenge (contributing to the difficulties democratic systems have in maintaining some semblance of control and predicability around discursive engagement with citizens by making it far easier for information to be distributed in a largely uncontrolled way) and an

2 Personal communication to Robyn Seth-Purdie in February 2004. Kamahl Udan is a PhD candidate at the University of Canberra and submitted a Thesis on community consultation in ACT planning.

A policy dialogue process along the lines used by the Canadian Public Policy Forum. The Institute (see Zussman 2003) is an independent body which undertakes assignments for government, business and not-for profit bodies. The stages in a dialogue involve identifying the facts (what are the problems, what are the causal relationships, what does the best evidence tell us) in a neutral document that is circulated for comment to all legitimate stakeholders, followed by a policy forum, involving a group of stakeholders who need to reach agreement in order to find a workable solution to the problems. Government may sit in on the last phase, or may be presented with a consensus document with the group’s conclusions. The process is not undertaken unless the Government (or any other party with the power to implement the outcome) has agreed it will be responsive.


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opportunity (by providing governments with tools to reach large numbers of citizens and enter into various forms of interaction with them, individually and collectively) (p. 85 ff). Against this background, the UN document identifies a hierarchy of ‘Features of the Public Sphere at Different Levels of ICT Application’ (pp. 91–92). The hierarchy covers:

• ‘Access to the public sphere’ (ie entry to government ‘space’ on the web)

• ‘Freedoms (speech, assembly and association, also in cyber-space)’ (ie exercise of individual freedoms on the web)

• ‘Transparency (ie free access to information about state activities)’ (ie using the web to enable easier access to information that is already open, if not easily accessed)

• ‘Medium of talk’ (ie means of two-way exchanges with citizens, but largely in the control of government and its agencies)

• ‘Separation of the public sphere, the government and the markets’ (ie advanced phase where networks of common interest and dialogue are created across the boundaries of government, civil society and the private sector).

One of the key observations in the UN Report is that attempting engage citizens via ICTs is likely to be met with scepticism in circumstances where ‘real world’ consultations are not perceived as being robust or effective (p. 94). In other words, e-government is not a cyber-space alternative to ‘real world’ interaction with citizens. It is a means towards the same general ends that can have certain advantages over other forms.

A similar point is made by the Organisation for Economic Cooperation and Development in its publication The e-Government Imperative (2003a). A particularly useful aspect of this publication is the ‘Guiding Principles for Successful e-Government’ (p. 19), which identifies ten principles broken up into four categories (‘Vision/political will’, ‘Common frameworks/co-operation’, ‘Customer focus’, and ‘Responsibility’). The key point that emerges is that e-government is not merely an ‘add-on’ or an activity to be undertaken as a modest afterthought. It involves fundamental re-evaluating the basic architecture of a government’s relations with citizens, requires considerable financial and political investment, and carries with it specific risks (eg, relating to increased community expectations) that need to be identified and managed.

The OECD has also produced a shorter publication (Engaging Citizens Online for Better Policy-making 2003b) oriented towards tools and techniques for online engagement, which summarises approaches that can be used in various stages of the policy-making cycle (ie agenda setting, analysis, formulation, implementation, and monitoring), across the range of engagement levels (ie, information, consultation, and participation). Again, the emphasis is on the need for clarity about why ICT tools are being used, at what stages of the process, who is being consulted, and how.

Academic interest in online citizen engagement appears to be particularly active in the United Kingdom. A key example is Bowling Together: Online Public Engagement in Policy Deliberation (Coleman, & Gotze 2001). This work brings together the literature about citizen engagement with an exploration of the appropriate technologies for online engagement, mapping these according to the extent to which they give citizens a ‘voice’ (ie. enable dialogue and discussion) as opposed to a ‘vote’ (ie. enabling citizens the capacity to influence actual decision-making through some form of vote or referendum process)


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3.9 Risk Management and Shared Governance When government decision-making involves layers of social, economic and environmental complexity, a form of power-sharing with the community may be less risky than exercising power alone. In a paper that explores innovative approaches to decision-making on natural resource management issues in Canada, Dobell (2002) adduces three main grounds for increasing citizen participation:

• intrinsic, based on “the inherent right of individuals to have voice and influence in decisions that affect them”

• substantive, based on “the conviction that greater participation brings greater awareness, promotes synthesis of local and traditional knowledge with conventional science and hence leads substantively to better decisions”, and

• instrumental, based on “the belief that broad participation is essential to acceptance of the legitimacy of decisions and hence to compliance with them” (Dobell 2002 p. 119).

Amongst Dobell’s issues for discussion around new models of participatory governance are those of accountability, the reconciliation of competing interests, the need for integrated policy responses across government, subsidiarity as a guiding principle, the capacity and resources for a greater community role in decision-making, and, not least, the proper role of government. Referring to some of the more radical reform proposals, he comments:

some […] envisage officials from both federal and provincial governments becoming advisory to a consensus-seeking process, rather than seeing the consensus-seeking process as advisory to them, Government officials (or Ministers) would be expected to exercise powers to make independent decisions only in cases where the consensus-seeking process fails to achieve consensus on necessary management action. (Dobell 2002 p. 115)

3.10 Guidelines for Effective Consultations Box 3 below, drawn from an OECD publication on promoting open government, provides useful guidelines for conducting effective consultations. Within the planning context, these guidelines should be interpreted in the light of the principles set out in Chapter 2.

Box 3: Guidelines for Successful Consultations

Guiding principles for successful information, consultation and active participation measures for citizens in policy making 1. Commitment: Leadership and strong commitment to information, consultation and active participation in policy making is needed at all levels—from politicians, senior managers and public officials. 2. Rights: Citizens’ rights to access information, provide feedback, be consulted and actively participate in policy making must be firmly grounded in law or policy. Government obligations to respond to citizens when they exercise these rights must also be clearly stated. Independent institutions for oversight or their equivalent are essential to enforcing these rights.

3. Clarity: Objectives for and limits to information, consultation and active participation during policy making should be well defined from the outset. The respective roles and responsibilities of citizens (in providing input) and government (in making decisions for which they are accountable) must be clear to all.

4. Time: Public consultation and active participation should be undertaken as early as possible in the policy process to allow a greater range of policy solutions to emerge and to raise the chances of


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successful implementation. Adequate time must be available for consultation and participation to be effective. Information is needed at all stages of the policy cycle.

5. Objectivity: Information provided by government during policy making should be objective, complete and accessible. All citizens should have equal treatment when exercising their rights of access to information and participation.

6. Resources: Adequate financial, human and technical resources are needed if public information, consultation and active participation in policy making are to be effective.

7. Co-ordination: Initiatives to inform, request feedback from and consult citizens should be coordinated across government units to enhance knowledge management, ensure policy coherence, avoid duplication and reduce the risk of “consultation fatigue” among citizens and civil society organisations. Co-ordination efforts should not reduce the capacity of government units to ensure innovation and flexibility. 8. Accountability: Governments have an obligation to account for the use they make of citizens’ inputs received through feedback, public consultation and active participation. Measures to ensure that the policy making process is open, transparent and amenable to external scrutiny and review are crucial to increasing government accountability overall.

9. Evaluation: Governments need the tools, information and capacity to evaluate their performance in providing information, conducting consultation and engaging citizens, in order to adapt to new requirements and changing conditions for policy making.

10. Active citizenship: Governments benefit from active citizens and a dynamic civil society, and can take concrete actions to facilitate access to information and participation, raise awareness, and strengthen citizens’ civic education and skills, as well as to support capacity building among civil society organisations.

Source: OECD (2003c), pp. 19–20

3.11 The Context of Planning and Planners as Catalysts for Change Albrechts 1999 describes the experience of taking part in the process of developing a spatial plan for Flanders, from which he draws strong conclusions about the context for planning and the potential of planners as catalysts for change. He warns against viewing planning as a technical activity that can be carried out in isolation from social and political influence:

Planning is a concrete socio-historical practice which is indivisibly part of social reality. The planners – as we did – live in a political world whose characteristics are often at odds with the planners’ ideology of reason. To get the necessary support for our ideas we negotiated, built alliances, mobilised support. (op.cit. p. 595)

He notes that establishing a “communicative tradition and culture” is important for public engagement in consultations. On occasion, consultations may not lead to consensus, but may instead draw out divergence of views and animosities between different social or interest groups. However, even difficult discussions with powerful pressure groups could be productive:

The use of these meetings was that we mutually learned about concerns we had, about aims and strategies. The result was that the points of view came closer together but no final agreement was reached. This was left to the political arena. (op.cit. p. 594)

Amongst the conditions Albrecht concluded were necessary to infuse a “new elan and a new spirit” into the practice of spatial planning was:

The focus on the highly political role of planners. We served as catalysts and initiators of change. We substantiated to a large extent this change and started to implement this change as well. We considered our implicit responsibility not


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only to be ‘efficient’, to produce a ‘professional product’, to function smoothly as neutral means to given and presumably well-defined ends. We were more than navigators who kept our plan on course. We were necessarily involved with formulating that course. We were stronger partisans for certain alternatives as opposed to others, for the interest of some weak groups and functions over others, for some patterns of future development and so on. This committed mediation proved to be a viable, practical, effective, and for us also ethically desirable strategy. (Op. cit. p. 101)

Acknowledgment of the social, institutional and political context for planning makes it easier to identify those points at which the principles of good governance are likely to be pressured or compromised, and to design countervailing mechanisms. The use of appropriate, targeted techniques of stakeholder participation forms a key part of a good governance system for planning, as for other government activities. Purpose and context are key determinants of the form and content of any successful community engagement process.


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CHAPTER 4: BETTER PRACTICE EXAMPLES

Provides examples of effective approaches to stakeholder engagement covering information provision, consultation and participation are provided from Brisbane, New South Wales, Victoria, South Australia, Tasmania and Vancouver.

4.1 Assessing Better Practice Three things should be noted about the concept of ‘better practice’. First, better practice is what is considered the best way of tackling a particular problem in the light of current knowledge. As research and evaluation improve our understanding of what works in what circumstances, better practice changes. Second, no government demonstrates better practice across all of its operations, although some may come closer than others. Third, better practice models usually need to be tailored to the individual circumstances of governments, taking into account the existing institutional framework, resources and community expectations.

The conditions for this Review did not permit an exhaustive search of better practice nationally and internationally. The examples provided in this Chapter have mainly been selected because they were recommended by one or (usually) more of the planning experts and academics consulted for the Review, and because they measure well against the principles in ‘A Planner's Responsibility to the Public’ set out in Chapter 2 and the ‘Guidelines for Conducting Effective Consultations’ in Chapter 3.

4.2 Brisbane3

Residents reference panel

Purpose

Brisbane City Council established ‘Your City, Your Say’ (http://www.brisbane.qld.gov.au/ about_council/your_say_online/index.shtml) in 1998 as one mechanism within a larger community engagement strategy that would enable residents and landowners to have greater input into the development of their city.

A significant feature of this engagement mechanism is that it invites consideration of planning issues within a broader policy context – that of the social and economic development of the City. Reference group members are advised of other issues surrounding the particular issue on which feedback might be sought at a particular time as well as future issues scheduled for consultation.

Initial membership was gained through responses to a city-wide mail out of invitations to join a community reference panel for work contribution to the ‘Living in Brisbane 2010 initiative’. Currently over 5000 residents are on the database, which includes basic demographic information on members. The program is managed centrally in the Council’s Community and Economic Development Division. Its objectives include:

• providing early identification of issues of concern to the community;

3 Th assistance of Brisbane City Council CEO, Jude Monro and Portfolio Leader Citizen Engagement, Melissa Nugent, in providing this information is gratefully acknowledged.


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• providing a sounding board for strategies proposed by Council - sometimes using members to see whether consensus can be built on particular initiatives;

• educating and informing residents on major issues, with the panel acting as a conduit to the larger community and champions (‘ambassadors’) of Council consultation.

The steering group that manages the program is between seven and eight strong, with on-going participation of representatives from Marketing and Communications, Strategic Policy and Planning and the Office of the Lord Mayor, in addition to ad hoc membership from other senior managers, depending on the issues on which the program is focussed at a particular time. It meets bimonthly.

When issues particularly relevant to particular community segment or geographic area need to be explored, a sub-group of the panel can be constructed from the database. Awareness and recruitment campaigns for the program itself can constitute such issues.

Communication mechanisms

The Council’s communications with the reference group include:

• Quarterly Newsletter (online and posted, depending on member preference) that provides information about opportunities for participation, provides feedback from previous consultations, as well as features on specific topics. At least one feedback medium (usually a survey or opinion form on Council policy or directions) accompanies each newsletter.

• Community Forums enabling residents to ‘interact with Councillors, Council staff and other residents to provide input into Council directions and priorities. These can be in the form of seminars or workshops and may include the use of expert speakers, facilitated discussions or focus groups’

• Interactive Website that includes all Newsletters and other information on Your City Your Say, in addition to online discussion forums, feedback forms and polls is available to both panel members and non-members.

Reaching the whole community

Like all self-selected groups, the reference panel has its limitations – but research can establish the characteristics of any representational bias, and suggest where under-represented groups need to be targeted for further consultation. Currently, Your City, Your Say membership differs from the general population in being:

• less likely to be younger people, aged 18–34 years

• more likely to be older people, aged 45–64 years.

• less likely to be in single person households.

• more likely to be white collar/professional workers and have a higher average household income than the general population.

• more likely to be long term residents and to own their own home.

• less likely to speak a language other than English at home than the general population.

This bias seems to reflect a general problem in achieving community consultations with a representative sample of the community. In response, the Council has undertaken special


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targeting activities to reach under-represented groups including ‘young people, people from non-English speaking backgrounds, people with disabilities and renters through mainstream media and Council communication channels’. The program has partnered with other Council programs in order to reach the ‘hard to reach’ and ultimately, increase the diversity of the community reference panel via:

• partnership with ‘Visible Ink’, the Council’s youth participation strategy;

• networking with relevant social and advocacy groups throughout Brisbane to make information about the program available in places accessed by members of ‘hard-to-reach’ groups. For example, a relationship with a Greek community group has enabled the translation of Your City, Your Say information into Greek, and the promotion of activities through this community group’s networks.

• Use of accessible formats, where possible, to ensure that residents will not experience problems accessing information or contributing feedback. Newsletters are available both online and offline and in audiotape and Braille. All Council venues are accessible and bilingual consultants or translations are available, if appropriate. Council is trialing the translation of newsletters and other appropriate information into simple English to promote access to people with a disability.

Issue coverage and impact

Input from City, Your Say has had a tangible influence on some major Council initiatives, including ‘Living in Brisbane 2010’ (inclusion of two additional themes within the Vision – ‘City Designed for Subtropical Living’ and ‘Active and Healthy City’) and on the development of such programs as Fit and Fun, Youth in Recovery and Made in the Shade.

Topics in consultations have included: ‘Information technology and globalisation’; ‘Brisbane as a creative and inclusive city’; ‘Clean and Green – including air quality, habitat protection and clean waterways’; and ‘Council budgets’.

Retaining trust

Major benefits can be realised from this type of program as membership is relatively stable – experienced members become better informed and better able to provide useful input They can be easily and quickly accessed in a cost-effective manner. However, it may at times be difficult to reconcile Council and participant expectations. The Council has tried to address this risk by:

• Emphasising the connection between and the broader strategic implications of the local issues which are the prime focus of interest for most members

• Creating realistic expectations from the outset, in part by clearly defining Council responsibilities and the scope of particular projects, and by openly acknowledging that not everyone will be pleased with the outcomes of any single project.

• Demonstrating that the process and outcome of community consultation is fair and impartial, by showing how members’ contributions are fed back into Council planning and policy development. More detailed feedback may sometimes be given specifically to the members who participated in an activity.’

• Offering regular, timely and good quality information and opportunities for participation, even on discussion about complex, politically sensitive topics such as illicit drugs and homelessness. In such cases the program may be used as a


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mechanism to lead community discussion, and provide reassurance to members that ‘they are being involved in the complete picture and not just ‘soft’ agendas’.

• Conducting information campaigns to remind members that their influence is maximised through being involved in consultation activities early in the policy development cycle.

Trials of consensus building exercises

Use of reference group members in consensus-building exercises around three complex and controversial topics - ‘Clean and Green,’ ‘Transport’ and ‘Homelessness’ – is being undertaken on a trial basis. A number of consultation activities will be involved, including focus groups, workshops, surveys, and facilitated discussions.

The success of these initiatives relies on building the capacity of members to reflect upon their opinions as well as alternative viewpoints and understand the implications for Council directions and actions. Ultimately, the ability of members to contribute to policy solutions on each of these issues will be enhanced. (information provided to Review by Brisbane City Council)

‘Whole of government’ approach

Successful operation of this program needs good information flow and cooperation between different work units across the Council. In a current internal communication program, the Council is emphasising some of the major benefits of the reference group, in, for example contributing ideas to planning issues, participating in pilot projects or acting as a ‘barometer’ for new proposals, whilst reminding staff that the group is not representative and that other consultation techniques may be needed in preference to, or in conjunction with, the reference group.

Key lessons

The Brisbane City Council cites these as the most important lessons from implementing the Your City, Your Say program:

• The importance of developing opportunities for genuine consultation. Maintaining high levels of trust, built during a long-term relationship with members, is what makes Your City, Your Say so effective. Feedback and ongoing communication is critical to the development of trust.

• It is also important to establish strong relationships with work units and to build an understanding of the policy development process amongst residents so that residents see how their involvement fits.

• The need to constantly evaluate the progress of the program so that challenges are both acknowledged and addressed. This ensures the program is dynamic and responsive and enables the best possible consultation experience for Council and the community alike.

(Report provided to Review by Brisbane City Council)


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Integrated planning centres and planning panel

Description and purpose

Since 1999 Brisbane City Council has operated four regional business centres that provide a range of customer and community services, including development assessment, licensing and compliance, local laws, local assets and community development.

Accessibility

The decentralised and integrated provision of services is intended to provide easier local access, increased local knowledge on the part of planning staff, and increased opportunity for community engagement.

For example, at the regional offices residents can:

• access all information about a property (maps etc).

• get 15 minutes free time with a town planning professional to discuss issues about a development or an assessment process. This can include explanations on planning scheme requirements, aspects of planning legislation and general development advice, a service which aims to increase community knowledge of the development process.

• book a pre-lodgement meeting to clarify aspects of the application process or information required.

• lodge applications or submissions/objections at any local office and discuss these directly with the town planners

• seek business planning advice, including up-front information about permits, licences etc.

• access electronically the public scrutiny file kept for each development application lodged.

• find out about funding possibilities (eg grants) and other community group/ organisation support services.

Regional Offices also assess domestic development applications that include Code Notifiable procedures. Although not officially recognised (through third party appeal rights) under the Queensland Integrated Planning Act (1998) these application types represent an opportunity for members of the community to lodge submissions and comment on development proposals.

Transparency

When Town Planners assess applications, consideration is given to the matters raised in each and every submission/objection received. This is documented and forms part of the town planner’s recommendation on the application. This documentation is attached to the public scrutiny file. A letter is sent to all people who have lodged a submission, which includes notification of their appeal rights.

Effectiveness and timeliness

The region-based approach has meant that local knowledge is improved and officers are closer to the action, improving the timeliness of service delivery. The multi-disciplinary


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nature of the teams also improves continuity of Council involvement and a whole of government approach from planning through to development/ construction/ running your business.

An integrated team of professionals can consider all aspects of a property development, asset or licensing issues. The teams have become specialists in dealing with domestic/small lot applications and land use issues, leading to decreased turn-around times in relation to small scale but locally significant developments. It also provides personalised service to the sector of the building industry which most needs it.

Councillors as intermediaries

As Councillors receive copies of all applications, they are aware of issues and can acknowledge/respond to local community enquiries as they arise. In many respects they act as intermediaries between town planners the community, and the site developer. As a result the town planners have very close relationships with the Councillors in their region.

The level of proactive community engagement in relation to planning decisions varies between wards. For example, some Councillors invite residents to public meetings about planning decisions. Council officers attend these meetings to explain the decision making process, timing and aspects of the decision that residents can influence.

Regional offices also provide a point of contact and support service for Councillors to find out information about regulations/laws on behalf of the community.

Impact

Brisbane City Council summarises the impact of the regional offices thus:

The establishment of regional customer and community service teams has achieved a greater participation rate from the community, largely as there is greater awareness of residents rights in the planning decisions process. Representation is improved due to the local focus of work and improved communication between regional and ward offices. (report provided to Review by Brisbane City Council)

The importance of appeals

Brisbane City Council views appeals as a positive sign that citizens are engaged in the planning process. Each development application can have one of four outcomes on an increasing scale of conflict between the community and the proponent:

(1) Mutual agreement

(2) Negotiated outcome

(3) Mediated outcome

(4) Adjudicated outcome.

Brisbane’s experience is that the efficacy of regional teams improves when team members become more skilled at conflict resolution. Development of good relationships with the principals and their agents adds to the ease of dealing with such issues to the satisfaction of all parties.


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Key lessons

Regional planning centres can offer:

• Improved access to planning and other information

• Stronger local knowledge amongst staff and better relationships with the community

• Improved integration of urban planning with social, cultural, environmental and economic planning.

Training planning staff in techniques of conflict resolution and building in additional processes prior to adjudication that provide a forum for discussion of differences and encourage finding mutually acceptable solutions, should:

• be less costly in time and other resources

• promote wider participation in planning consultations, and

• increase overall satisfaction with planning outcomes

than a more adversarial system.

Use of codified development standards

The City Plan lists a range of acceptable solutions for particular types of development. These are quantified standards that provide a way for Council to quickly assess if development applications meet the codes - sometimes based on a certification process.

If a development does not meet the acceptable solutions, there are sets of performance criteria. These are qualified standards that require a more subjective (expert) assessment of the development application. Council can seek advice on the assessment of these performance criteria from any third party including the State Government or an independent consultant.

Whether the development application refers to acceptable solutions or performance criteria, the consultation process remains largely the same. Consultation is via a submissions process. Council rarely uses its power to request third party involvement in the assessment process.

Key lessons

Some codification of standards can increase certainty speed of assessment for a range of development applications. Non-complying or more complex applications can still be assessed using a range of consultation processes.

4.3 South Australia

Sustainable Development Bill

In December 2003 South Australia put out for public comment its Sustainable Development Bill. The Bill aims to provide a ‘high level of policy and procedural certainty for both the community and applicants in the delivery of sustainable economic, social, environmental and infrastructure benefits to the State’ (Sustainable Development Bill, p. 1).

The Bill nests within a broad strategy (Improved Policy and Procedures) strategy to strengthen policy coordination and accountability horizontally and vertically throughout government (see Diagram 2).


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Diagram 2: South Australia’s Sustainable Development Bill

New generation Metropolitan Volume

New generation Inner Region Volume

Implementation of the Regional Volume

Sustainable Development Bill

• increased emphasis onsustainable development

• a more balanced approach to theconsideration of economic,environmental and social issues

• enhanced integration between theDevelopment Act and otherlegislation

• relevant, up to date and user-friendly policies in DevelopmentPlans

• greater certainty and efficiencyacross the system

• faster, more consistentdevelopment assessmentdecisions that comply with localDevelopment Plans

• better planning policies to supportboth urban regeneration and thenew Urban Growth Boundary

Planning Strategy for SouthAustralia

Council Strategic Plans

Development Plans

Development Assessment

Strategic Management Plan

Section 30 Reviews

Better Development Plans program

Streamlined Amendment Process

Streamlined Assessment Process

Development Assessment Panels

It ‘encourages Councils to undertake their strategic planning responsibilities on a regional basis, to provide a better planning–base and shared Council resources to work with Regional Natural Resource Management Boards and Regional Economic Development Boards.’ (op. cit. p. 3).

Changes to assessment of development applications

In pursuit of its objectives to provide greater certainty around future development for community and proponents, the Bill proposes a number of changes, including:

• Requiring better specified Council development plans that accord with higher level strategic plans;

• Creating a class of ‘prohibited’ development for proposals contrary to the Council plans – such proposals would only be considered ‘in limited circumstances after an elongated assessment process with no applicant appeal’;

• Creating a Ministerial power to specify ‘best practice public consultation requirements’ to increase community participation;

• Increasing ‘the investigative rigour and consultation on local heritage listing as well as promoting the preparation of desired future character statements to address separate neighbourhood character issues’.

Development Assessment Bodies

The Bill proposes to separate the roles of policy-making and implementation (assessment). Councillors – elected representatives- Bill will focus on ‘setting clear strategic directions, establishing desired future character statements and proposing amendments to Development Plans’. The task of impartially assessing applications for compliance with the policies specified in the Development Plan will fall to Development Assessment Panels, comprising three elected members, an independent Presiding Member appointed by the council, and


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three independent members, also appointed by the Council. All panel members will be required to submit a register of financial interest and be subject to conflict of interest and code of conduct requirements.

Those elected members of Council who are not on the Development Assessment Panel will thus be able to ‘undertake an advocacy role for the community and objectors without the conflict of interest of being on the Panel.’

Development Assessment Procedures

To increase the certainty of the statutory development assessment process, the Bill proposes to:

• facilitate a pre–lodgement consultation option with Category 2 notification and Referral Agency requirements waived if written conformation of agreement by the parties is lodged with the formal application

• facilitate a collaborative mediation step option, involving a professional mediator and the parties, so that conflict resolution can be addressed at an early stage before a final panel decision is made

• require Referral Agencies and/or councils to automatically refund development application fees for overdue advice or decisions.

Compliance

The Sustainable Development Bill includes provisions relating to a range of compliance matters, including:

• follow through with ERD Court orders for illegally removed ‘regulated trees’

• expiation notices for specified administrative breaches of the Act

• risk management auditing for Building Rules assessment procedures.

Key lessons

Achievement of government policy can be assisted through clarification of strategic objectives and demonstrating how they apply at various levels of administrative implementation – including that at which individual development applications are determined.

Development Assessment Panels – comprising elected and unelected officials – should provide an improved level of impartiality in the application of planning standards.

Audit and compliance procedures form an important part of the accountability framework.

4.4 New South Wales

iPLAN website

The Australian Institute of Planners has awarded the NSW Department of Infrastructure, Planning and Natural Resources, its 2004 National Award for Planning Excellence in the Community Based Planning Field for its iPlan site, Community Engagement in the NSW Planning System. The citation says:


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Community Engagement in the NSW Planning System is an important resource for professionals and communities involved in public consultation. It comprises a readily updateable website and accompanying printed handbook which details useful and practical material on every aspect of community involvement. The aim of the project is to improve the quality of community engagement across a range of planning, development and natural resource situations. It is written in non-technical language and provides frameworks for community consultations no matter how big or small the budget. It is of particular relevance to planners working at local, state and regional level, but will also assist the development industry, business, residents, interest groups and community organisations. (Planning Institute of Australia 2004)

The site set out ‘Leading Practice Principles’ for running successful consultations:

• Clarity of purpose

• Commitment

• Communication

• Evidence

• Flexibility and responsiveness

• Timeliness

• Inclusiveness

• Collaboration

• Continuous learning

(iPlan site http://www.iplan.nsw.gov.au/engagement/principles/index.jsp)

Each principle is linked to a layer providing further explanation.

Table 5 below is drawn from the iPlan site’s Techniques and Tools for Community Engagement. It is a framework working within a ‘participation spectrum’ developed with, and recognised by IAP2, the International Association for Public Participation. It encourages thoughtful identification of techniques and stakeholder groups to match the circumstances, purpose and resources available for a particular task.


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Table 5: Techniques and Tools for Community Engagement

Objective Objective Objective Objective Objective

To provide the public with balanced and objective information to assist them in understanding the problem, alternatives, or solutions

To obtain public feedback on analysis, alternatives, or decisions

To work directly with the public throughout the process to ensure that public and private concerns are consistently understood and considered

To partner with the public in each aspect of the decision including the development of alternatives and the identification of the preferred solution

To place final decision making in the hands of the public

Promise to the public





We will keep you informed

We will keep you informed, listen to and acknowledge your concerns, and provide feedback on how public input influenced the decision

We will work with you to ensure that your concerns and issues are directly reflected in the alternatives developed and provide feedback on how public input influenced the decision

We will look to you for direct advice and innovation in formulating solutions and incorporate your advice and recommendations into the decisions to the maximum extent possible

To place final decision making in the hands of the public

Highlighted tools Highlighted tools Highlighted tools Highlighted tools Highlighted tools

Meeting Public notice Website Written information

Citizens' panel Community information and feedback session Facilitation Focus group Meeting Public hearing Public meeting Questionnaire Website

Facilitation Planning focus meeting Precinct committee

Advisory committee Charette Facilitation Policy round table Search conference

Citizens' jury Search conference

Some other tools Some other tools Some other tools Some other tools Some other tools

Discussion paper Exhibition Promotion

Community needs analysis Networking Strategic questioning

Networking Review session Strategic questioning

Strategic questioning

Joint venture

Source iPlan Site: http://www.iplan.nsw.gov.au/engagement/techniques/index.jsp

Links on the site provide explanations about each of the techniques listed in Table 5.


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Box 4 below provides handy hints on reducing the costs of consultations, to help secure the best value for money.

Box 4: Reducing Costs

Ideas on reducing costs

Avoid duplication of engagement exercises through collaboration with other organisations. Spread costs by consulting jointly with other organisations where possible.

Use members of the community to carry out the community engagement. For instance, encourage community centres, special interest group representatives or shopkeepers to pass on information, raise awareness, discuss issues of concern.

Encourage comments and suggestions on an ongoing basis. For example, send out a comments slip with public documents, have comment/feedback forms at exhibitions, displays and open days.

Seek opportunities to engage special interest, community and business groups and other government agencies at their own premises as part of their regular activities.

Source: iPLAN site: http://www.iplan.nsw.gov.au/engagement/cycle/costs.jsp

Key Lessons

Consultations are most effective when conducted in accordance with sound principles and when there is a good match between purpose, timing, target group and technique. This site provides an extensive ‘how to’ kit for planning staff and stakeholders. It promotes consultation within a good governance framework and principles, as set out in Chapter 2 above.

4.5 Port Phillip: Toolkit for Participatory Consultation Processes The City of Port Phillip’s Community Participation Toolkit (Toolkit 2001) – available on an interactive CD – won a National Award for Planning Excellence at a joint congress of the Royal Australian Planning Institute (RAPI) and the New Zealand Planning Institute in 2002.4

Principles and Techniques

Like the iPlan site described above, the Toolkit provides an armoury of consultation techniques, along with guidelines as to their use. It stresses the importance of conducting consultations in accordance with a set of principles, many of which are similar to those promoted by the OECD (Chapter 3 above):

• Listen: let people talk about things that are important to them.

• Be committed: act on advice.

• Be democratic: provide access to decision-thinking and decision-making.

• Educate: give and share information and knowledge. Empower citizens to be active and responsible.

• Build the skills of City of Port Phillip as well as encouraging citizens to build their own skills.

• Share concerns: own the problem and solutions. 4 See: http://www.portphillip.vic.gov.au/attachments/o1687.htm.


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• Share responsibility: encourage active citizenship.

• Be relevant: make definite and tangible the intentions of the Council

• Make visions clearly intelligible.

• Be accountable.

• Show leadership.

• Accept and celebrate diversity and difference.

• Actively encourage inclusion by using culturally sensitive and appropriate participation techniques.

• Promote a connection among and between the layers of people in the community.

• Demonstrate honesty and respect.

• Be non-judgmental.

• Be non-paternalistic.

• Be creative. (Toolkit 2001 p. 8)

Special needs groups

The Toolkit notes the importance of ‘inclusion’ and the necessity of developing a consultation framework that takes into account the special needs of:

• Indigenous populations

• Language backgrounds other than English

• Literacy issues

• Psychiatric, physical and intellectual disability issues

• Drug and alcohol issues

• Young people, children and families with children

• Older people

• Residents of rooming houses, private hotels, public housing estates and supported accommodation

Forming an accountability group

Forming a community ‘accountability’ group that represents ‘a wide range of interests, points of view and fields of expertise’ at the beginning of a participatory consultation process is recommended, particularly ‘where there are strong community views about a project or where there is weak community representation’ (Toolkit 2001 p. 9). Such a group would perform a similar function to a community ‘liaison’, ‘consultative’ or ‘reference’ committee, but:

The term accountability is chosen for precise reasons. Suggesting the use of the term accountability group usually elicits powerful responses, which are often an indication of people’s commitment (or otherwise) to genuine participation. (Ibid.)

Although such a group works best with fewer than 15 people, the toolkit recommends never turning away a member. The process would commence a preliminary search conference to


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initiate a participatory planning process, explain the role of the accountability group and ask for volunteers. That group would be convened as soon as possible, asked for advice about others who should be represented, and given the opportunity to elect a chair.

The group’s terms of reference should be negotiated and there should be ‘clear agreement about the terms of the proposed project (what is and is not negotiable).’ (Ibid.) The main functions of the group are to provide:

• Ongoing advice and comment on a policy or proposal;

• A channel for people to contribute to and monitor a proposal; and

• Opportunities for people to gain experience in a participatory process. (Ibid.)

Three types of accountability are applied:

• Accountability to the project: seeing that the project or process has a fair chance of surviving on its merits.

• Accountability to the truth: accountability group members commit themselves to scotching rumours and keeping a flow of accurate information between the proponent and the wider community.

• Accountability to the ‘constituencies’ or communities represented by accountability group.

The Toolkit provides an analysis of strengths and weaknesses of all the techniques it discusses. Although such groups can develop into useful resident action groups, capable of providing input on a range of issues, they can become side-tracked from the role of operating in ‘partnership’ with a proponent. Moreover, as the group becomes better informed, its views are likely to become more moderate, to the point where the group may be considered ‘elitist’.

Outcomes

Informal feedback suggests that the implementation of the philosophy and the techniques presented in the Toolkit has increased community satisfaction with Council services and with the quality of planning decisions.

Key Lessons

Informal feedback suggests that the implementation of the philosophy and the techniques presented in the Toolkit has increased community satisfaction with Council services and with the quality of planning decisions. A commitment to inclusive consultation processes is often associated with revitalisation of the community.

4.6 Tasmania: Integrated Development Applications Facility The Local Government Association of Tasmania is developing an on-line planning information system that will eventually be able to provide all planning data relevant to assessment of a particular development application.

The project originated as part of an initiative funded by the former National Office for the Information Economy in integrated information covering Commonwealth, State and local government authorities. The TIGERS project developed a single government portal through which citizens could gain access to a range of information (see: http://www.planningapplications.gov.au/landa/main.php).


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The first two phases of the planning segment of this project have been completed: ie application forms for all areas are now available together with general information about the planning ‘scheme’ in each council area. By September of this year the third stage should be in production – ie information about the relevant planning scheme should be tagged and related to a particular development application.5

Key lessons Provided that planning legislation is free of contradictions and gaps, it can be entered into a database and access through a government services portal. An online system can guide users effortlessly through layers of complexity and provide consistent information in response to interrogations, and offering increased access and opportunities for participation.

4.7 Vancouver: Sound Principles for Community Engagement The Greater Vancouver Regional District (GVRD) espouses the following principles in its approach to engaging the public in planning:

1. Support for an open public process Members of the public are encouraged to participate throughout the planning process, with key technical issues being shared proactively as much as possible. The public consultation process is an opportunity for informed [emphasis added] public audiences to contribute to the siting and planning of facilities and services.

2. Deliver key messages using understandable language and format As much as possible, communications materials distributed to the public and stakeholder groups will be timely and coordinated and use plain, understandable language to highlight the key project messages.

3. Flexibility in communications and consultation The communications and consultation plan will be flexible and responsive to the concerns of the community and GVRD requirements. It will be reviewed on an ongoing basis and amended if necessary.

4. Reporting structure of public consultation Stakeholder input from the public consultation and planning processes will be reported to the GVRD Management Committee, the Communications, Education and Culture Committee and the respective municipal city council(s). This input is considered as advice to the GVRD Board and other committees and agencies, with final decision-making authority resting with the GVRD.

5. Integration with other processes The communications and consultation activities will be integrated with the overall planning process, and with other relevant GVRD and local initiatives in the study area, whenever possible.

(Greater Vancouver Regional District)

Key lessons Clear and accessible communication is an important part of a good consultation strategy, and planning consultations are best integrated with consultations on other issues.

5 A report on this scheme is available on the Australian Government Information Office web site at: http://www.agimo.gov.au/publications/2003/09/tigers_report/ (accessed 11 April 2004).


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CHAPTER 5: STATUTORY AND NON-STATUTORY PROCESSES OF COMMUNITY ENGAGEMENT IN ACT PLANNING

Identifies and discusses the major statutory and non-statutory consultation processes in planning and development in the ACT.

This chapter is primarily aimed at describing the statutory and non-statutory consultation processes the Review Team has been able to identify in ACT planning. Analysis and evaluation of these processes is provided in the findings at Chapter 7.

5.1 The Legal Framework

Complexity and controversy endemic to planning

A study of the history of planning law reveals how difficult the task of regulating planning processes has proven. In his classic text on planning law McAuslan (1973) describes some of the landmarks in UK planning law and proffers an explanation as to why planning systems are so complex, and why decisions within those systems are so frequently controversial:

Whether looked at as an aspect of land law – what may an individual do with his own land? – or an aspect of public law – how may the authorities control what an individual does with his own land and for what purposes? … (p)lanning is concerned with the allocation of scarce resources and each decision, within the sphere of planning, even on a minor matter of development controls, represents a value judgment about the way a particular resource – usually land – should be used. (op. cit. xxv–xxvi)

ACT Planning law

A combination of Commonwealth and ACT legislation governs planning in the ACT. Although this complexity is a hindrance to both understanding and administration, it does not appear unusual in the planning context. The task of simplification is one facing many jurisdictions.

Commonwealth powers

The Australian Capital Territory (Self-Government) Act 1988 creates the ACT Executive (Chief Minister and other Ministers) and gives the Executive its general powers.

The “use, planning and development of land” is included in Schedule 4 to the Act, which lists “matters concerning which the Executive has power to govern the Territory”.

However, the Executive’s powers over planning and development in the ACT are defined and limited by another Commonwealth Act: the Australian Capital Territory (Planning and Land Management) Act 1988. The powers which can be exercised by the Minister for Local Government, Territories and Roads (the “Commonwealth Minister”) and the National Capital Authority under this Act are not confined to the control of development in “designated areas”. Under the Plan for the Territory (the National Capital Plan), the Commonwealth Minister and the NCA are able to:


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set standards for the maintenance and enhancement of the character of the National Capital and set general standards and aesthetic principles to be adhered to in the development of the National Capital. (s.10 (a))

The Minister for Territories is not obliged to take into account objections to the Plan (or proposed variations) made by the ACT Executive.

The Commonwealth also exercises powers under certain environmental and natural resources legislation and through Commonwealth State/Territory agreements.

ACT Government powers

Subject to determinations of the Commonwealth, ACT planning powers are mainly the province of the Minister administering the Land (Planning and Environment) Act 1991 and the Planning and Land Act 2002. However, other ACT legislation may apply. For example, the Tree Protection (Interim Scheme) Act 2001 and Schedule 1 of the Environment Protection Act 1997 require ACTPLA to notify the relevant authorities when a proposed development meets specified criteria.

The Land (Planning and Environment) Act 1991 covers variations to the Territory Plan including public consultation procedures. It empowers the Legislative Assembly to reject draft variations. The Act also covers the identification and protection of aboriginal heritage and other heritage places, and the investigations of the environmental impact of development proposals.

This Act sets out procedures for the determination of DAs and lease applications. Under ss.229A and B of the Act the Minister for Planning is able to “call-in” undecided DAs and either accept or reject them, whether or not public consultation has taken place. His reasons for doing so must meet threshold criteria set out in those sections, and they must be tabled in the Legislative Assembly.

All development applications must be notified unless an exemption applies under the Regulations.

The Planning and Land Act 2002 (the Act) establishes the ACT Planning and Land Authority and the Planning and Land Council. The latter is a statutory body appointed by the Minister to provide expert advice on major DAs and other proposals. It is discussed further later in this chapter.

The main functions of the Authority are set out in Box 5 below.


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Box 5: Statutory Functions of ACTPLA

* to administer the Territory Plan, including:

- administering leases on behalf of the Executive;

- determining building approvals

- making orders under the Land (Planning and Environment)Act 1991-part 6 (Approvals and orders);

* to review its own decisions;

* to provide policy advice on planning and land use, including review of the plan;

* to provide secretariat support to the Council;

* to ensure community consultation and participation in planning and other decisions;

* to promote public education and understanding of the planning process, including by providing easily accessible public information and documentation on planning and land use;

* to maintain and provide access to information on land boundaries and ownership;

* to provide planning services in and (with approval, beyond the Territory).

Source: Planning and Land Act 2002 [Emphasis added]

These functions are to be performed in such a way that they “have regard to sustainable development” and “take into account” the Minister’s Statement of Planning Intent. Section 14 of the Act defines what is meant by “sustainable development” – see Box 6 below.

Box 6: Sustainable development

sustainable development means

the effective integration of social, economic and environmental considerations in decision-making processes, achievable through implementation of the following principles:

(a) the precautionary principle;

(b) the inter-generational equity principle;

(c) conservation of biological diversity and ecological integrity;

(d) appropriate valuation and pricing of environmental resources.

the inter-generational equity principle means that the present

generation should ensure that the health, diversity and productivity

of the environment is maintained or enhanced for the benefit of

future generations.

the precautionary principle means that, if there is a threat of serious

or irreversible environmental damage, a lack of full scientific

certainty should not be used as a reason for postponing measures to prevent environmental degradation.

Source: s.14, Planning and Land Act (2002)

Statement of Planning Intent and other ‘soft’ planning law

The Minister’s Statement of Planning Intent is at Attachment B. It sets out a vision for the quality of life in Canberra. Like the principles of sustainable development it is a value


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statement – something to guide policy and decision-making – not something that can be directly enforced through judicial procedures, although it might guide the AAT and the courts in interpreting ‘hard’ law.

5.2 Statutory Consultation Processes The statutory provisions requiring public consultation on planning and development proposals in the ACT are complex, resulting from interactions amongst a number of Commonwealth and Territory acts and regulations. Major elements of the statutory consultation regime are described below.

Consultations on Draft Variations to the Territory Plan

The Land (Planning and Environment) Act 1991 sets out the requirements for public consultation on any proposed variation to the Territory Plan. In broad terms, these are as follows.

Public notification

Under s19 of the Act ACTPLA must advertise the availability of the proposed variation and background papers at stated places for no less than 15 days during business hours. If ACTPLA considers that the proposed variation would, if approved “not affect anybody’s rights” then public consultation is not obligatory, although ACTPLA must still “take reasonable steps to inform itself about public attitudes to the draft plan variation” (s.19C(3)). ACTPLA must display written comments at the specified places during the consultation period. Subsequent deferral or withdrawal of the draft variation must also be publicly notified.

Under s.74 of the Australian Capital Territory (Planning and Land Management) Act (1988) ACTPLA is also required to undertake public notification of any draft variation and invite submissions on it, as well as to advise, consult with, and “have regard to the views of”, the National Capital Authority.

Consultations on environmental and heritage issues

If there are heritage register implications of the draft variations, consultations with the Heritage Council are mandatory. The Minister appoints the Heritage Council and oversees the Heritage Register.

In preparing a draft variation ACTPLA is required under s.13 of the Land (Planning and Environment) Act 1991 to consider any relevant environmental report or inquiry information and any report required under the Territory Plan. Under the same section, the Minister has the power to direct that an assessment be made, or to establish a panel to conduct an inquiry about any aspect of a draft plan variation or a proposed draft plan variation.

Under s.16 of the same Act ACTPLA is required to consider any recommendations made to it by the Conservator of Flora and Fauna.

Consultation with the Planning and Land Council

Under Part 3 of the Land (Planning and Environment) Act 1991 draft variations must also be referred to the Planning and Land Council for their advice. The functions of the Council are set out below.


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ACTPLA reports on consultation to Minister

Written reports on the outcome of consultations are sent to the Minister. If the Minister wishes to proceed with the draft variation, it must be referred to the Legislative Assembly. The Assembly has the power to reject a draft variation under s.29(4) of the Land (Planning and Environment) Act 1991.

Additional consultation processes used by ACTPLA

In its recent consultations on the Territory Spatial Plan, and the earlier Draft Variation 200, ACTPLA has engaged in wide-ranging community consultation techniques including public forums, invitations to make submissions, and facilitated work-shops.

Recent consultations on Neighbourhood Plans in Watson, Dickson and Hackett have also employed a range of techniques, some highly participative in nature.

Planning and Land Council

Establishment and Membership

The Planning and Land Council is established under Part 3.1 of the Planning and Land Act 2002, with a Secretariat supplied by ACTPLA. Its five to seven members are paid sitting fees and are appointed for terms of up to 4 years by the Minister, who must “try to ensure” that the following disciplines and areas of expertise are represented: (a) urban economics

(b) community and social planning

(c) urban and regional planning

(d) environmental management

(e) land development

(f) public policy or public law

(g) urban design

(h) transport planning

(i) public administration

(j) engineering.

Most members are not Canberra residents – the result of a deliberate strategy to avoid conflict of interest.

Statutory referrals to the Council

Under s.11(1)(b) of the Act, ACTPLA must ask for Council advice on matters prescribed under the Regulations (s.4). These include matters that the authority considers to involve “significant policy, planning or community issues”, which always encompass:

(a) preparing draft plan variations (except those involving “broadacre land”);

(b) preparing or reviewing a section master plan;

(c) preparing or reviewing a program of land release for the ACT;

(d) advising on the broad spatial planning framework for the ACT;


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(e) dealing with an application, or the grant of a lease, if the Minister has directed that an assessment be made, or a panel be established to conduct an inquiry, under the Land (Planning and Environment) Act 1991, part 2 (Planning), part 5 (Land administration) or part 6 (Approvals and orders) or another Act in relation to the application or grant;

(f) deciding an application that relates to—

(i) a residential building intended to be higher than 3 storeys and consisting of more than 50 units; or

(ii) a building the total floor space of which is intended to be more than 7000m2; or

(iii)a building or structure intended to be higher than 25m;

(g) deciding applications to change concessional leases into leases that are not concessional leases.

An ACTPLA pamphlet describes the role of the Planning and Land Council as one of supplementing rather than supplanting community consultation processes.

Importantly, advice given by the Council will be publicly available, thereby enhancing the process of keeping the community informed about planning and land management decisions in an independent and transparent way (ACTPLA “Planning and Land Council”6)

Meeting agendas and minutes are therefore posted on the Council’s own web site.

5.3 Non-Statutory Consultation Processes (Note: The distinction between statutory and non-statutory consultation processes in the ACT’s planning and development system is somewhat blurred. Some largely non-statutory arrangements – such as the former LAPACs – can have some statutory aspects within their purview.)

Former LAPACs – Statutory and non-statutory consultation

Charter

Six Local Area Planning Advisory Committees were established by the previous Government. They represented six distinct geographic areas of Canberra with the exception of Weston Creek, Tuggeranong and Gungahlin. The Guide for LAPACs (PALM 1997) described their function as:

• To provide information to residents and the general community on developments within the LAPAC and on the interpretation of the Territory Plan.

• To improve community understanding of the Territory Plan and help in proposing and formulating the changes to the Plan, where appropriate. To be an integral component of the pre-application stage of any proposal by acting:

* (1) as a conduit to pass on community views on a proposal to PALM and potential developers; and

6 Available at: http://www.actpla.act.gov.au/aboutus/transition_pdf/Planning_Land_Council_DL.pdf.


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* (2) as a “sounding board” for developers to gauge community reaction to a proposal.

• To develop and maintain Community Value Statements and Community Plans (which establish planning principles and guidelines for the area) against which proposals can be assessed.

• To review proposals against the Community Value Statements and Community Plans and provide comment to PALM.

Matters to be referred

LAPACs were intended to deal with a range of strategic planning issues in addition to the specifics of individual DAs, including:

• All notifiable applications for commercial, retail, industrial, community and multi-unit residential development affecting the LAPAC area.

• Public Works Implementation Plans relevant to the LAPAC area.

• Preliminary Assessments and Environmental Impact Statements relevant to the LAPAC area.

• Draft planning guidelines relating to the area.

• Draft Variations to the Territory Plan relating to the area.

In addition to these, matters relating to the responsibilities of other government agencies could be raised in LAPACs and referred by PALM to the relevant agency for direct response to the LAPAC concerned.

Dual occupancy applications were not referred to the LAPACs “because of the already extensive guidelines” which related to them.

Community Value Statements

The Lansdown Review of Residential Policies (1995) had recommended concepts of “area recognition” to reflect the varied character, environment and social and physical amenity of a neighbourhood. LAPACs were asked to prepare suitable “Community Value Statements” that would “define the community’s aspirations on the future development of their area in terms of streetscape, heritage, urban design and other values and will provide a framework within which LAPACs will consider matters which are referred to them.” The Statements were also to:

• assist planners to make day to day decisions;

• identify what the role of ‘the area’ is to Canberra and what that role will be during the next 20 years; and

• be consistent with the objectives of the Territory Plan.

However, they would not be ‘Development Control Plans’.

Membership and elections

Each LAPAC would have around 12 to 15 members: one from each suburb in the area, either a resident or someone from a residents’ group, three people from business interests in the area, one person nominated by Belconnen Community Council (the relevant Community


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Council?), in addition to up to four additional persons appointed by the Minister to achieve the desired representation.

Residents in the LAPAC jurisdiction could vote at LAPAC elections. Committees elected their own convenors and other office bearers. Appointments were for 12 months, unless extended by the Minister.

Resources

LAPACs had a small Secretariat in PALM and in 1997 were each allocated up to $1000 for expenses. Membership was honorary.

Statutory role

Although the role of the LAPACs was strictly advisory, they had a statutory role:

Under the Territory Plan the views of the Committee will be considered in accordance with Appendix I.1 of the Territory Plan - Matters for Consideration, specifically item (d) which requires that community submissions must be considered.

LAPACs are recognised under Variation No. 58 to the Territory Plan, Part 2.11 – Referral of Notifiable Multi-unit development Applications which states:

“A controlled activity application for, or providing for, Multi-unit development consisting of more than two dwellings shall be forwarded, under s229(4)(b) of the Land Act, to a community advisory committee on planning where:

(a) such a committee is established and recognised by the Minister as a relevant committee for the purposes of the application; and

(b) the application is not exempt from the requirement to be publicly notified under s229(1) of the Land Act.” (op.cit)

At the time of writing, the ACTPLA website still states that:

Referral to LAPACs is mandatory for all new multi-unit developments other than dual occupancies and all non-residential developments. The proposal should be presented to the relevant LAPAC at the earliest opportunity. This may change in the future due to a possible review of the role of LAPACs.7

Box 7 below sets out the five stages the Pre-Application process for a proposal meeting the threshold for HQSD. In addition to the statutory referral to a LAPAC at Stage II, LAPACs played a role at Stage, as I, as the Community Value Statement used in Site Analysis would have been prepared by the relevant LAPAC.

Box 7: The Pre-application process

Stage I: Site Analysis Plan (responding to the Site Analysis Guidelines is to be submitted as early as possible in the design process) ie well before Development Application stage), and soon after initial contact with PALM.’ MANDATORY FOR: All new multi-unit development including dual occupancies

7 ‘High Quality Sustainable Design in the ACT’ (March 2003), pamphlet available at: www.actpla.act.gov.au/qsd/pdf/hqsdbrochure03.pdf.


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All replacement houses in established areas Extensions of gross floor area 100m2 to any existing residential building, including single houses All non-residential development in residential land use policy areas Non-residential development elsewhere of gross floor area 1000m2 or greater.

Stage II: Design concept submitted, including the following: • Development Concept Plan • Landscape Concept Plan (If applicable) additional information for urban renewal sites in established areas (eg. Coloured sketch elevation or photomontage of the streetscape(s), focused around the proposal and extending for at least two properties on either side of the development site. A scale model can be useful in design and presentation). MANDATORY FOR: For all of above prior to lodgement of a DA. The proposal should be presented to any Local Area Planning Advisory Committee (LAPAC) at the earliest possible opportunity. Most proposals will need to be presented to any neighbours who may be affected at the earliest possible opportunity. MANDATORY FOR: All new multi-unit development other than dual occupancies. All non-residential development. PALM may also discuss a proposal with the Commissioner for Land and Planning.

Stage III: Design Review Panel reviews the site analysis and development concepts. PALM convenes a pre-application meeting to discuss proposal with proponents and other agencies and to provide feedback from Design Review Panel. MANDATORY FOR: All multi-unit development of more than five units Non-residential development of gross floor area of 1000m squared or greater.

Stage IV: The proponent must submit a High Quality Sustainable Design Response Report that describes how the design responds to: • the site analysis • the Quality Design Indicators • the Residential Sustainability Index (where applicable) • comments of the Design Review Panel (where required) • comments of LAPAC (where required) • comments of neighbours • issues raised in pre-application meetings or correspondence from PALM. MANDATORY FOR: All new multi-unit development including: • dual occupancies • All replacement houses in established areas • Extensions of gross floor area 100m squared or greater to any existing residential building,

including single houses • All non-residential development in residential land use policy areas • Non-residential development elsewhere of gross floor area 1000m2 or greater. Stage V: Manager Coordination & Quality Development, Planning and Land Management, provides written acceptance of the site analysis and the High Quality Sustainable Design Response Report MANDATORY FOR All of above prior to lodgement of DA. This enables “in principle” acceptance of design concept prior to DA lodgement subject to public comment, detailed assessment and final decision. Source: ‘Designing for High Quality and Sustainability’, at: http://www.actpla.act.gov.au/qsd/pdf/hqsdo.pdf [undated].


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LAPACs and Objection Procedures

If a LAPAC wished to lodge an objection to an application, this had to be lodged in accordance with s237 of the Land (Planning and Environment) Act 1991. LAPACs were advised to ensure that:

• the objection had the majority support of the committee (ie a formal and valid carried motion evidenced in meeting minutes);

• the formal objection was separate from the meeting minutes and clearly stated that the committee wished to object and the reasons for doing so; and

• the objection or intent to object was lodged within the 21 day Public Notification Period, regardless of the Committee’s next scheduled meeting time.

Community Planning Forums

Community Planning Forums (CPFs) – the proposed successors to the LAPACs – never operated, so it is not possible to provide a review their operation. However, there is enough documentation on the proposed terms of reference, charter and membership to allow them to be compared to LAPACs.

Comparison of CPFs with LAPACs

CPFs were to have similar terms of reference and overall operating conditions to LAPACs, being similarly advisory in nature. The major differences would have been:

• A greater number of CPFs – to cover the whole of the ACT as opposed to six LAPACs.

• Only “significant” DAs, for example, those with environmental or heritage implications, those covered under HQSD Guidelines, or those involving significant policy, would have been referred to CPFs (although LAPACs were intended to focus on policy issues, in practice they spent most of their time examining individual DAs). ACTPLA would have had the discretion to refer a matter to a CPF after considering a request to do so.

• An appointment process managed by ACTPLA would have replaced the LAPAC elections. Attention would have been given to diversity of representation and there would have been a larger membership (20 instead of 15). The Minister would have had the power to reject individual members if he felt that the balance or effectiveness of the group would otherwise have been compromised, and to appoint up to one additional member from each suburb.

• Detailed guidelines for considering and reporting on issues, with a strong emphasis on reaching consensus.

The Community Planning Forums were abandoned in late 2003, due to insufficient nominations for membership.

Planning and Development Forum

Terms of Reference

As set out in documentation provided by ACTPLA, the purpose of the Planning & Development Forum was to provide strategic advice on planning and development policy to the ACT Government pending establishment of ACTPLA.


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The body has no statutory role, but was set up to work “cooperatively” and provide “timely and integrated” advice to .the Minister and the then PALM on a range of planning and development issues, including:

• the Canberra Spatial Plan

• Neighbourhood Planning

• Open Space Review

• ACT Code

• Draft Territory Plan Variation 200 (the Garden City Variation)

• Master Planning for town, group and local centres, and

• Community Facility Needs Assessment.

In addition, the Forum would:

• ‘develop’ new planning policies and initiatives, as required by the Minister;

• communicate these to the community and member constituencies;

• evaluate policies including responses to community and industry consultation processes

The 12 Forum members would be appointed according to the following formula:

• 3 from industry groups – MBA, HIA, and Property Council;

• 3 from professional groups – RAIA, PIA and Landscape Architects/ Designers/ National Trust

• 1 from the Conservation Council;

• 1 ACTCOSS; and

• 4 community members from LAPACS/NPG’S, PACTT and Community Councils

The independent Chairman is appointed by the Minister.

Other non-statutory processes

ACTPLA has undertaken a range of consultation procedures in the preparation of Section Master Plans and Neighbourhood Plans. Unless these involve draft variations, these consultations are non-statutory, in the sense that there is no procedure specified in statute – although, as mentioned above, one of ACTPLA’s functions is “to ensure community consultation and participation in planning decisions”.

Neighbourhood plans

In the course of neighbourhood planning exercises in Watson, Downer and Hackett, Residents Reference Groups have been asked to develop ‘community value statements’ – like those that LAPACs were expected to produce. The web site that describes the roles and responsibilities of these groups and the Department says clearly that there will not be joint decision-making – but that community views will be publicly documented.8 There is no undertaking to provide reasons for rejecting community views.

8 Available at: http://www.actpla.act.gov.au/plandev/neighbourhood_plans/refgroup/terms/.


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CHAPTER 6: STAKEHOLDERS’ VIEWS

The consultation process with stakeholders and its limitations are outlined. The issues of concern identified by stakeholders are discussed and analysed.

6.1 Stakeholder Consultation Process The Review Team endeavoured – within the time and resource constraints of the project – to consult with representatives of all of the stakeholder groups listed in the project brief. We also contacted a range of other individuals with relevant expertise. A list of organisations consulted is provided at Attachment C. Most of the consultations consisted of group sessions with (for example) community planning groups, business and professional groups, and community welfare organisations. Where stakeholder representatives had been unable to attend group sessions, they were consulted individually. Some individuals from community planning groups made unsolicited written submissions to the Review Team.

This process could not be expected to produce views that are representative of the community as a whole, in the way that, for example, a well-constructed survey might do. The project brief was to obtain the views of groups in the community that have a strong personal or professional interest in planning. Data from a recently completed survey commissioned by ACTPLA to examine its communication strategies will also be relevant to its processes of stakeholder engagement and should complement the findings reported here.

At Attachment D is a summary of stakeholders’ views as obtained by the Review Team – they do not represent the views or findings of the Review Team.

6.2 Key Issues Raised by Stakeholders This section briefly summarises and analyses the issues raised by stakeholders. Stakeholder views are outlined in Attachment D.

All stakeholders were asked about positive and negative aspects of the community consultation process in planning in the ACT. Although the comments tended to be negative on the whole, stakeholders did volunteer examples of consultations that they considered to have been successful. However, these ‘success’ stories seemed to be the exception. To put this in context, it should be noted that the vast majority of the many hundreds of decisions made by ACTPLA every year do not give rise to controversy.

The key themes to emerge from stakeholder discussions included:

• Trust and confidence

• Complexity, uncertainty and inconsistency

• Access to accurate and intelligible information

• Imbalances in power/influence and resources

• Consultation framework and techniques

• Missing layer of government

• Isolation of planning from other policy

• Role and effectiveness of advisory bodies

These are addressed in the following analysis of stakeholder views.


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Trust and confidence

In various ways, all stakeholders consulted for the Review evinced some degree of distrust of each other, or of the planning system, and/or the officials responsible for its implementation. Setting aside for the moment whether such distrust is objectively warranted, it is clear that there is a need for the development and maintenance of greater general levels of trust and confidence in the system. There was a tendency for stakeholders to mention specific projects or events that had clearly been problematic in terms of community consultation processes, and the dominant theme was a perception either that consultation had been carried out for form’s sake, with the decision already determined, or that information, time or access to officials had been unjustifiably withheld. On the side of developers and industry, there was a perception that community consultation processes were open to abuse by disgruntled and/or ill-informed individuals who used the requirements in the DA process to disrupt legitimate development, and that there were elements of the community who would be opposed to any form of development because they were opposed to change per se.

The effect of this distrust appears to have been a growing scepticism on all sides as to whether other parties were genuinely interested in hearing others’ views or in achieving the best possible planning outcome. Such an environment compromises the potential for communication and reduces the chances that any given consultation exercise will be successful.

As already noted, consultations for the Review were mainly carried out with people who are the most interested and most vociferous on planning matters in Canberra.9 Hence it is not possible to comment on the views of the ‘silent majority’ in the community who rarely if ever interest themselves in planning and development issues, restricting their involvement only to those occasions when a proposal affects their local area.).

Complexity, uncertainty and inconsistency

Closely related to the trust and confidence issue is the question of complexity in the system, and the tendency for this to give rise to uncertainty of outcomes. This was a view expressed especially by developers and industry representatives, but it was also an observation that came through our discussions with community organisations. The key difference between the two perspectives was that where people from industry focused on the number of points in the development assessment process where members of the community could either object or appeal against a proposal, those from community groups tended to stress the potential for abuse of administrative discretions. The latter arises from the discretion to ignore numerical guidelines (say on set-back) if the decision-maker considers that that a proposal satisfies high quality design objectives.

Stakeholders also raised the interaction of Commonwealth and ACT legislation as a factor contributing to uncertainty of outcomes.

Concerns about complexity of the system and the inconsistency and uncertainty that arise from it were accompanied by suggestions from some planning industry representatives and some community groups that not all ACTPLA staff possess the technical expertise – in planning law, design and property development, not mention cultural, environmental, social and economic considerations – needed to assess development proposals adequately. On the

9 However, we did seek to also speak to organisations representing more marginalised groups in society. The sense of distrust and scepticism about the ‘system’ was even greater in these discussions than with either industry representatives or with community groups active in planning issues.


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other hand, it should be noted that all stakeholder representatives had had dealings with particular staff whom they considered to be highly professional and dedicated.

It appears that planning law in the ACT may be internally inconsistent as well as complex. Moreover, the fact that the Commonwealth has powers to over-ride ACT Government planning decisions (see Chapter 5) is likely to remain problematic.

The ACT appears to have made less progress in using online information systems to reduce the impact of complex sets of rules on both administrators and citizens than have some other jurisdictions in Australia (see Chapter 4). Use of such online systems may lead to greater consistency in planning decisions and greater stakeholder confidence in ACTPLA.

Access to accurate and intelligible information

Lack of information, inaccurate or misleading information, technical language, and provision of too much extraneous information: all these aspects of the information ‘problem’ arose in discussions with stakeholders. Linked to the trust and confidence issue, the perception that other parties in the system (especially Government, its agencies, and developers) deliberately withhold or distort information, is common among community groups, although industry groups also mentioned the issue. The fact that ACTPLA has only one office, on the north side, and that its website is not up to date, constitute further barriers to accessing information, and thus, to participation. Limitations on the provision of planning information in languages other than English, restrict diversity of participants. Similarly, limitations in language or communication medium restrict access and/or engagement of other segments of the community with special needs, particularly people of aboriginal background, people with disabilities, young people and older people.

ACTPLA’s performance in stakeholder engagement would be improved through providing better access to clear, accurate and relevant information on planning policy and development proposals in a variety of inclusive formats and styles. Those Australian jurisdictions sited in Chapter 4 are using a number of techniques to increase access to planning information and participation in consultation exercises.

Imbalances in power/influence and resources

Industry representatives suggest that there are members of the community who are so active and influential in ACT planning that they can distort decision-making by purporting to represent a wider constituency than is in fact the case. On the other hand, community groups point to the well-resourced lobbying undertaken by industry and its representatives. Some community planning groups felt that industry has had easier access to Government, particularly to the Minister.

One of the factors that can lead to an imbalance of power and influence is that of cost and resources. Whereas most community organisations rely very heavily on volunteer labour and have few financial resources to apply to the consultation and lobbying process, industry and its representatives are typically more able to finance a sustained ‘campaign’. Community groups consulted for this Review were very concerned about their lack of resources. They suggested that this imbalance in financial resources could be addressed by subvention from Government, much as already happens in the welfare and environmental sectors.

It is difficult to assess the validity of these views but there is evidence in the literature (discussed earlier in this Report) that suggests that industry can use its resources, economic influence and general political access to gain a disproportionate degree of access to decision-makers. And both industry and community groups frequently use the media to exert a more


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public form of influence. The fact that it may be difficult to dismiss concerns about undue influence of a particular interest group suggested that the transparency of policy-making and decision-making can be improved.

‘Missing layer’ of government

Many stakeholders and others interviewed for the Review commented on the ‘missing layer’ of government in the ACT, where the Territory Government performs both state and municipal functions. The literature review in Chapter 3 suggests that when the size of the group represented exceeds 50 to 100 hundred thousand, people tend to feel that they are not being ’heard’ by their representatives.

Noting the missing layer of government, representatives of some community planning groups advocated a special role for organisations representing ‘civil society’ to fill the gap. The absence of a formal role for community groups in ACT planning, was, they felt, a major gap in the system and contributed to feelings of dissatisfaction with the current consultation processes.

That there are shortcomings in the representation of community views in the current arrangements seems undeniable – and may relate to lack of representative structures at Town Centre level, and/or lack of an adequate role for community organisations in formal consultation arrangements.

Consultation framework and techniques

Effective community consultation is demanding and difficult, requiring considerable skill, persistence and good will. It is not typically a skill set planners, developers or bureaucrats acquire as a matter of course in their professional development. As a result, the stakeholders we consulted tended to highlight consultation processes that seemed perfunctory, heavily controlled, and/or exercises in telling people what had already been decided, rather than genuinely engaging in genuine dialogue working collaboratively to achieve better planning outcomes. Community welfare groups considered that consultation techniques were not sufficiently inclusive of groups with special needs.

The distinction between policy and implementation, was very important to Government and industry stakeholders: once consultations had been held on a particular policy issue they did not expect to have that issue re-opened in consultations on particular development applications. It was clear that many, but not all, community groups, did not subscribe to this principle, thus giving rise to considerable frustration on the part of proponents and Government as consultations on particular DAs are regularly used to challenge existing policy.

Developers and planning professionals considered the consultation process, particularly on development applications that fall under the High Quality Sustainable Design (HQSD) guidelines, to be inefficient and costly. Given the profit imperative for developers, if the cost and/or risk of doing business in the ACT is driven too high, investment and development could be driven elsewhere.

These comments suggest that the governance framework around consultations needs to be strengthened so that participants can be confident that they have been given an accurate idea of the scope and possible outcomes of a process, that their input will be valued and that they will receive feedback on how it has been used. It appears that some consultation processes are not currently cost-effective – either because they are not undertaken using the most


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appropriate techniques, because the timing is wrong, or because what they produce is not useful or is ignored.

Isolation of planning from other policy

Many stakeholders felt that planners tended to see their professional practice as needing to operate independently from other forms of policy development and planning. This had undesirable consequences, as there were a range of other policy considerations that were affected by planning decisions – particularly in areas of cultural, social, environmental and economic activity.

The literature on consultations and the instances of better practice cited in Chapters 3 and 4 respectively, indicate the advantages of coordinating multiple policy streams in planning within regions. The ACT Government’s Territory Plan – a combination of three Plans (Spatial, Social and Economic) – is recognition of the strengths of ‘whole of government strategies’. The next step is for this approach to be put into practice.

Role and effectiveness of advisory bodies

As detailed in Attachment D, stakeholders were asked their views on:

• Planning and Land Council

* seen as unrepresentative and lacking expertise in property matters

• Planning and Development Forum

* specifically reviewed as part of the brief for this study

* provides a unique opportunity for most major interests to be represented at a territory-wide level

* but seen as not having been utilised to the full potential of its terms of reference

• LAPACs

* mixed views and judgements about the role and effectiveness of the former LAPACs

* some doubts about representativeness or capacity to genuinely reflect community views

* widespread view that LAPACs had been under-resourced

• Community Planning Forums

* were designed to replace LAPACs

* negative views among stakeholders about composition, appointment processes and functions of the proposed CPFs

Overall, stakeholders appear to recognise that the various advisory and consultative bodies that have been established within the ACT’s planning and development system are well-intended attempts at engaging the community and business in the process. But there are clearly differences of opinion as to how effective these bodies have been in terms of representing various perspectives. Areas of concern include the need for:


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• more clarity as to the roles and responsibilities of such bodies

• improving the range of views and interests represented

• improvements in transparency, and

• better resourcing of activities.

6.3 Responding to Stakeholder Views In a complex system of public administration like planning, where Government has to search for the public interest often under pressure from a range of particular interests, it is neither possible nor appropriate that policy and practice be entirely determined by stakeholders’ views. The diversity of stakeholder views makes such a course nearly impossible, and there are other perspectives that need to be taken into account. That is why this Review has considered the relevant principles of governance, canvassed relevant literature, examined some better practice examples, and used them to analyse the specific structures and processes of community consultation in planning and development in the ACT. Against this background, the next Chapter seeks to bring together the various threads of the Study – including stakeholders’ views – in a consideration of the options for action.


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CHAPTER 7: FINDINGS, OPTIONS AND RECOMMENDATIONS

Provides an overall assessment of options in stakeholder engagement within the broad governance framework of planning and development in the ACT, drawing on the literature, better practice examples and consultations with stakeholders. Includes recommendations for action and further study.

7.1 General Findings Based on our consideration of the material in the earlier chapters of this Report – that is the literature, better practice examples, an audit of consultation processes in ACT planning, both statutory and other, and stakeholder consultations – we have reached the following broad conclusions:

• There are strengths in the system worth retaining and building on, including a general commitment to better planning outcomes among the stakeholders and officials, a clear and detailed Statement of Planning Intent by the Minister (Attachment B), and city-state scale that allows reform and change.

• Overall, stakeholders consulted in the course of this review had a low level of trust in the planning system, ACTPLA, and the Government (see Chapter 6). Even allowing for the fact that the stakeholders the Review Team consulted were clearly interested in presenting a case for change and reform, the consistency a frequency with which this lack of trust and confidence was alluded to was significant. Lack of trust in a consultative system can result from a combination of many factors, most of which relate to a lack of a good governance framework for planning and development. Many of the other findings listed below also result from this shortcoming.

• Consultation processes are not always conducted in a transparent and accountable way. For example, the purpose and limits of the consultation exercise, in terms of its potential influence on outcomes, may not be made clear up front, and participants and not given feedback to show that their input has been used. Hence, stakeholders on the whole did not feel that they had been ‘heard’ by Government, despite increased opportunities to provide input to consultation processes – nor did they have confidence that increased consultation activity has led to better policy or decision-making (see Chapter 6).

• Consultation is not always carried out in such a way as to get the best match amongst purpose, technique, timing, target group, and resources (as recommended in the literature – see Chapter 3). However, there have been occasions on which early indications that a consultation was off-track have prompted adoption of a more appropriate response.

• Communication techniques used to disseminate information and engage the community have not always been effective. This is confirmed by the findings of an independently conducted ACTPLA Communications Survey conducted in late 2003 – early 2004.

• Consultation processes in general have not attracted the involvement of a representative cross-section of the community, missing particularly the young, the aged, people from Aboriginal and Torres Strait Islander or non-English speaking backgrounds and people with disabilities. Planning committees – both statutory and informal – demonstrate this lack of diversity (see Chapter 5).


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• The multiple layers of consultation are not seen as productive (see Chapter 6). Extensive consultation on policy does not bring relief from policy-based objections to development proposals that are consistent with that policy. Community consultations at the pre-application stage of the High Quality Sustainable Design process do not guarantee smooth sailing through the Development Application process, and that process can in turn be followed by a lengthy appeal process.

• There are differing views as to who has a right to carry out development on their own property and in what circumstances. Similarly, there is no common view on who has a right to be consulted about proposed developments and in what circumstances – nor as to who should have a right to object to development and in what circumstances (see Chapter 6).

• There is considerable uncertainty about planning decisions for industry or the community. Current planning law lacks clarity and is difficult to interpret (see Chapter 5). The constraints that apply to a particular development proposal arise from the interaction of statutes administered by different portfolios and, in some cases (for example the recent case of the extension of Gungahlin Drive Extension) different levels of government. Even where there is agreement about which rules apply, certain standards – for example, numerical guidelines in terms of set back – do not appear to be consistently applied.

• Although urban planning decisions have social, economic, and environmental impacts, they are often made in isolation from or with too little input from other sectors (as reflected in the system described in Chapter 5). Many planning decisions have been criticised because they have paid too little attention to obtaining information about environmental impact. However, stakeholders also raised inadequate attention to social and cultural impacts as an issue of concern. Community planning groups may have a narrow focus on planning issues and ignore inter-related policy issues that planners have to take into account.

7.2 Specific Findings Building on the general findings above, this section describes the Review’s findings about specific elements of the statutory and non-statutory stakeholder engagement processes in ACT planning.


As discussed in Chapter 5 and reflected in some stakeholder comments, the Council provides valuable expert advice from a range of disciplines relevant to planning decisions. However, its membership is not diverse, and does not cover the range of social, economic, environmental and cultural expertise that need to underpin planning decisions. The decision to draw members mainly from outside Canberra can be defended in terms of wishing to avoid conflict of interest, but it results in a perception that the Council has a limited capacity to comment on local issues. Although the Council has expertise in community planning, it lacks community planning representation. This is not critical, provided that the necessary information from sound consultation processes is made available to the Council – which is not an advocacy body. The Council also lacks expertise in commercial property and development issues – which could also be provided from independent sources or by an impartial member with suitable background.


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It does not appear that the existence of the Council, with its capacity to provide independent and expert judgement on significant planning and development proposals, has resulted in increased community confidence in ACTPLA decisions. The Council was not intended to impact on the community’s sense of its own engagement – but it may have had such an effect because it has a statutory consultation role whilst community groups, at present, do not.


The Forum has not been utilised in accordance with its terms of reference (see Chapter 5) and is viewed by many as a case of wasted potential. Although many stakeholders (see Chapter 6) felt that the unique constitution of the Forum – with its combination of professional, industry, welfare, environment and heritage, and community planning representation – should be useful, they felt that it needed more resources, a clearer mandate and work program, and, most of all, clearer rules of engagement that would make the most of its capacity to provide a neutral arena for debate. The lack of sitting fees for volunteers on such a committee was an issue, as was lack of public feedback on the Committee’s agenda and deliberations.

Stakeholder views about the potential of the Forum to play a useful role, especially by providing a platform for vigorous debate amongst different stakeholder groups, seem justified, on condition that the Forum be given a clearer role in the overall consultation process, more transparency and an appropriate level of resources.

LAPACs

Despite the LAPACs’ acknowledged shortcomings in terms of representativeness, accountability, resources, limited geographical coverage, narrow focus and, to some extent, limited planning expertise, community and industry groups felt the need for a formal channel to represent broad community interests (Chapters 5 and 6). Community groups advocated such a role on the grounds that they wish planning decisions to reflect their own views and aspirations. Industry’s view might be seen as a desire to have the protean obligation of community consultation given a definite shape.

There is a need for a formal role of communities in planning decisions that affect them; the LAPAC model, however, had many shortcomings.

Proposed Community Planning Forums

Although this model had the potential to address some of the LAPAC short-comings of lack of diversity and accountability, relative lack of planning expertise and shortage of resources, as reflected in Chapter 5, it suffered from some of the same short-comings – narrow focus on urban planning, and duplication of other consultation processes. Above all, it suffered from a clear lack of community confidence.

Additional consultation processes

In its recent consultations on the Territory Spatial Plan, and the earlier Draft Variation 200, ACTPLA has engaged in wide ranging community consultation techniques including public forums, invitations to make submissions, and facilitated work-shops.

ACTPLA has also used a range of techniques in its consultations on Neighbourhood Plans for the Inner North.


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These techniques go beyond the statutory specifications, and were clearly intended to achieve a higher level of community engagement and input than could have been achieved through adherence to the minimum statutory requirements. The Territory Plan consultations appear to have been successful in engaging a much wider range of participants than are normally involved in planning in the ACT. The effort and skill applied to some of the Neighbourhood Plan consultations, such as Downer, have achieved good results.

This Review did not canvass detailed case studies, but post-consultation reviews would yield valuable data on which ACTPLA could base future consultation strategies. Overall, it appears from stakeholder views and other sources that these consultation processes have met with mixed success, attributable at least in part to uneven success in developing strategies to ensure that the right people were consulted in the right way at the right time.

PACTT

Planning the ACT Together (PACTT) was established is a peak body for community planning groups in Canberra. On the basis of the limited amount of information on it collected in the course of the Review, findings about its effectiveness in that role are tentative. However, it was noticeable not only that there were several community councils and resident groups that were not affiliated with it, but that these groups strongly rejected any suggestion that PACTT could speak on their behalf. Like other community groups consulted for this Review, PACTT felt its capacity to contribute to consultations to be hampered by lack of resources. If the issues of representativeness and resourcing could be addressed, there would seem to be a useful role for a peak planning body such as PACCT in educating the community, helping to build capacity in local planning groups, and acting as a conduit between the community and the Government.

7.3 Discussion This section canvasses a series of issues related to options and recommendations based on the findings above that take into account the literature and better practice described earlier in the Report.

Complexity in the governance of planning

Planning systems are commonly characterised by complex legislation and controversial decision-making. This is because under the rubric of ’planning’ fall decisions that have profound effects on individual livelihoods as well as the collective quality of life, on community interactions and cultural vitality, as well as on the protection of the natural environment.

To a small Government with a limited revenue base, planning presents many ’governance traps’, including:

• The attractiveness of development proposals that offer needed economic opportunity and/or community facilities – where the Government may feel at a disadvantage in negotiating its preferred social, financial, and environmental outcomes.

• The temptation to spend more time with, and find more persuasive the well-resourced and accomplished lobbyists, rather than the more strident, or less flattering voices of community interests.


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• The temptation to avoid early consultation on developments that can be expected to be controversial, rather than taking a role in clarifying differences amongst stakeholders and working together to find common solutions.

These and other governance traps need to be addressed through a good governance framework. A sound approach to consultation and community engagement is part of a sound strategy for managing relationships with stakeholders, which itself is just one element of good governance. In the absence of a good governance framework, the consultation processes will fail, as will the relationships between government and stakeholders. The better practice examples cited in this Report show innovative ways of achieving higher levels of engagement, and producing higher levels of community satisfaction with the level of participation offered by Government, with the quality of the services provided by those Governments, and ultimately, with the quality of life and environment.

The ’messiness’ of planning consultations

The desire for efficiency may lead to a search for a simple and ‘tidy’ approach to consultation. Informed opinion obtained in the course of the review indicates that such a search may well be futile. Like other complex policy issues that cross disciplines, government sectors, and ministries of state, issues in planning involve competing interests, frequently contestable evidence, strong feelings, and significant impact on the quality and amenity of life – often having the most significant impact on those least well placed to defend their own interests. As the literature reviewed earlier in this Report suggests, there are some complex issues which need to be addressed through collaborative approaches between government and other stakeholders. Major development proposals appear to be of this character. The consultation processes needed, for example, to redevelop a neighbourhood commercial and service centre, so as to protect and promote cultural and other attributes whilst taking commercial realities into account, may well be protracted, iterative, and ’messy’.

According to stakeholder feedback, ACTPLA seems to have tackled tasks such as the Downer Village re-development with an approach that has proved effective in the long run. The next step is to evaluate the process to see what worked best and what could have been done better – so that the ’tool-kit’ can be refined over time.

Achieving a sound approach to consultation

An effective approach to consultation can achieve a number of aims:

• increased community confidence in the planning regime

• increased community ownership of difficult decisions

• improved quality of policy development and decision-making on complex issues, and

• as a result of all of the above, better Government management of a range of risks.

An efficient approach will deliver the best value from the resources it allocates. To achieve cost-effective strategies, a good match must be found between purpose, timing, technique and selection of stakeholders. What is being produced and the risks to be managed through consultation also need to be taken into account in determining the level of resources that should be allocated to the method, whether it be a one-off situation – for example the public consultations on the Canberra Spatial Plan – or on-going arrangements to obtain advice or share power/responsibility.


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A consultation regime could be viewed as providing a mechanism for community/ stakeholder input to a hierarchy of government values and strategies:

Level One Principles/ Values/ Legislation

Level Two Broad Policy goals/ Codes of conduct/ Customer Charters

Level Three Specific policy goals

Level Four Implementation and Review

Note that levels one and two form part of the governance framework for the planning portfolio. The more sophisticated the level, the more complex and comprehensive the processes of consultation will need to be.

Implementing ’agreed’ policy

A well-crafted, properly resourced process of community engagement at the level of policy and principles should serve to minimise the need to revisit fundamental matters of policy at the implementation stage.

In an open, democratic system, however, it is not always possible (or indeed desirable) to prevent issues of policy or principle that have ostensibly been ‘settled’ in earlier consultation processes being raised and debated again at the point of implementation and action. On the one hand, governments often express the wish that once the public has been consulted on broad policies or principles, the community should be prepared to let government get on with the task of implementation. Similarly, proponents who have consulted with the public on the pre-application stage of a proposed development are inclined to the view that once agreement has been reached on the concept, there should be no need for further consultation on the final design or plan. On the other hand, community and interest groups, as well as individual citizens, will often seek to re-open policy debates at the implementation stage. Therefore, where policy matters are revisited by stakeholders who are engaged at the level of implementation, a process needs to be constituted that acknowledges such concerns but also allows them to be dealt with in the most efficient and appropriate context.

Trust and other stakeholder issues

As discussed above and especially in Chapter 6, interviews with stakeholders – drawn from community, business, professional, and academic groups – yielded a range of concerns. Many of these are interlocking. Some appear contradictory. Many arise from a lack of trust in the processes by which planning and development decisions are made. It will not be possible to develop a cost-effective system of consultation unless trust in the system is developed. To accomplish this, the Government will need to be as concerned with the integrity and transparency of the processes used to develop and implement a new consultation regime as it is with the outcomes.

This has a number of implications. The system should provide the planning community with:

• ready access to complete, accurate, timely information;

• the opportunity to provide meaningful input to policy and development proposals that are significant to them;

• timely and independent review and audit procedures to provide an assurance that planning regulations are being accurately and impartially applied;

• timely and independent dispute resolution procedures.


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Engaging the whole community

Engagement with marginalised and disadvantaged groups may at times seem too difficult, but it is essential first to ensure that the welfare of these groups is improved rather than damaged by decisions that can affect them so greatly, and second, to gain the value of listening to their frequently unheard voices. Where such groups form part of the ’planning community’ for a policy or decision, resources and targeted strategies will need to be used to engage with and obtain input from the relevant groups.

Scheduling consultations

Shareholder feedback indicates that a strong signal is conveyed by decisions on the timing of consultations. If they are carried out over holiday periods, or near the end of the financial year, important segments of the community may be excluded. If they are conducted too close to the deadline for making a final decision or commencing implementation, they will not be considered genuine. Issues of good faith should be covered in the development of a code of conduct and consultation guidelines.

Communication strategies

ACTPLA needs to adopt communication strategies that stimulate broader interest in, and engagement with, all aspects of planning across the community. Perhaps this is best done by portraying planning as a complex enterprise, with economic, social, cultural, and environmental dimensions. Imaginative use of the full range of communication techniques should increase the audience for the planner’s invitation to be involved. Use of effective consultation techniques will encourage the continuing involvement of those who take up the initial invitation.

Potential conflict of role in DA assessment

Some of the concerns voiced by stakeholders about the role of ACTPLA staff in relation to DA assessment seem to point to a perception that there is a potential conflict in having the same organisation assisting proponents with the development of a design, responding to community concerns, and determining the success of applications. A common community perspective was that ACTPLA takes too active a role in assisting industry to get proposals through, while conversely many industry stakeholders expressed the view that ACTPLA officials are over-sensitive to community concerns. In either case, ACTPLA could be seen as acting in effect as a judge of its own efforts to promote good design and mediate between proponent and opponent.

The extent to which it is useful to separate policy-making and implementation is a moot point. The pendulum of academic opinion on this issue seems to have moved back toward integration, for the good reasons that the boundary between the two is difficult to delineate in practice and that the two functions need to be conducted, at the least, in very close collaboration. However, in some areas of public administration, it is commonly accepted that there should be separation of regulator and policy-maker.

Even if the regulator/policy-maker functions were separated, the regulator would still face the problem of having to determine how to assist developers to meet legal requirements and to achieve good design standards without being seen as an advocate for them.

This issue needs further exploration, but it could be addressed by having the tasks of assisting proponents to resolve design and compliance issues, and reach accommodations on significant matters raised in consultations, separated from the area where a decision on the


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DA is made. South Australia’s model – using Development Assessment Panels, with a majority of independent (non-Council) members – seem to offer advantages.

Development Applications

ACTPLA is currently revising and streamlining Development Application processes and associated consultation guidelines. There seems little purpose in ‘second guessing’ this process here. Adoption of a risk-management framework that uses sound principles and consultation guidelines (as per the OECD Guidelines and the IPLAN Community Engagement model) should lead to a robust outcome. However, one option related to DA processing has been included in Table 6 below – that is, the codification of HQSD guidelines. There was quite a degree of support for this concept amongst community planning groups, professionals, and industry groups – with the caveats that the process of articulating the guidelines would need to be well done, they would need regular revision, and there would need to be provision for innovative good design that could be approved through a more intense consultation process.

The Planning Institute of Australia is currently undertaking an exercise to develop better practice Development Assessment guidelines – the outcome of which will warrant close examination.

7.3 Options for Action Options to address issues raised by stakeholders are set out in Table 6 below. We have not ranked these options, but they have been allocated a general code to indicate whether they are short to medium or long term and which of three cost levels - low, moderate or high - they might involve. Note that some options address more than one issue.

Table 7 provides some examples of consultation options against aspects of the purpose and means of consultation.

Table 6: Options for Addressing Stakeholder Issues Legend: Time, Cost, and Benefit:

Time Cost Benefit Short term: T1 Low cost: C1 Low benefit: B1 Medium term: T2 Medium cost: C2 Medium benefit: B2 Long term: T3 High cost: C3 High benefit: B3

ISSUE OPTION(s) CODE

Lack of trust in the system

Related issues include:

Inaccurate information; lack of transparency in procedures; confusion over purpose of consultations; poor timing of consultations – over holidays or too late in the policy-cycle; lack of post-consultation feedback; failure to provide reasons for decisions; confusion over ACTPLA’s role in assisting developers to meet standards.

Work with stakeholders to develop a statement of planning responsibilities (see for example Mono County Statement)

Develop performance indicators from Government planning policy (eg the Statement of Planning Intent).

Monitor performance against the indicators and review them at regular intervals

Work with stakeholders to develop a customer service charter setting out the rights and obligations of ACTPLA staff and their customers

Work with stakeholders, including the Chief Minister’s Office, to develop a set of consultation guidelines – see for example OECD guidelines

Develop an independent planning audit process

T1C2B3 T1C1B3

T3C2B2

T2C2B3 T3C1B2

T1C2B3


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Lack of access to information

Provide shop-front inquiry/comment service in Town Centres (see fore example Brisbane City Council’s Regional business Offices)

Review and up-grade ACTPLA web site (see for example NSW iPLAN website)

Develop on-line data base to enable access to planning and development data, including heritage, environment and other relevant data, at all levels down to that of the individual block and section (see Tasmania’s Integrated Planning Applications Facility)

T2C3B3

T1C2B2

T3C3B3

Inadequate integration of urban planning with social, economic, & cultural planning

Town-based, integrated planning offices combining social, cultural, economic, environmental, and town planners – from different government portfolios where appropriate

Develop the role of the Planning and Development Forum to provide greater input to the development of planning policy and the assessment of significant development proposals

Set up residents reference panel similar to Your City Your Say in Brisbane

T3C3B3

T2C2B2

‘Missing layer’ of representative government

Establish Town Centre Planning Advisory bodies.

A further extension of this option would be to form “Town Councils”, gradually moving from non-appointed (but broadly representative) community councils with advisory functions, to bodies with a range of decision-making powers, for example, powers to determine a limited range of DAs within their jurisdiction.

T3C3B3

Lack of resources for community consultative groups

Provide resources for capacity building in community groups that participate in planning. A representative peak body could act as a channel for funding and building capacity of affiliated bodies

Provide participation fees for individuals who sit on consultative (decision-making and advisory) bodies or take part in intensive information-gathering activities

Provide funding for community bodies to undertake consultations with their constituencies

T2C3B3

T2C2B2

T2C2B3

Lack of diversity in planning consultations

Ensure that government-appointed bodies have diverse membership, particularly ensuring that those groups least able to speak for themselves are represented

Ensure that communication and engagement strategies target all segments of the community (see for example City of Port Phillip Community Participation Toolkit)

T2C1B3

T1C2B3

No statutory consultation role for the community

HQSD consultation process not codified

Lack of cost-effective consultation strategy

Work with stakeholders to consider options including:

Develop an “impact hierarchy” for development proposals with corresponding consultation arrangements

The approach with the most flexibility would be to apply a risk -management analysis to a wide range of development proposals, determining on a case- by- case basis the purpose, timing, mechanism, and stakeholder group for consultation.(See Table 6 below and NSW’s iPLAN guidelines and City of Port Phillip Community Participation Toolkit)

Add community representation to the Planning and Land

T3C2B3

T1C1B1


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Council OR

Give a statutory role to the Planning and Development Forum OR

Create a Planning Review Board, consisting of community, building, and planning representatives to conduct impartial, merit-based and non-adversarial (inquisitorial) reviews of controversial proposals. Appeals from this process to the AAT would be on very limited grounds. (see reforms proposed in South Australia’s Sustainable Development Bill)

OR

Develop in conjunction with stakeholders a codification of HQSD. Low impact, HQSD compliant DAs could be approved without consultation with third parties (abutting neighbours would still be notified). Non-complying proposals would need to go through more rigorous consultation processes. The Codification and the process would need to be reviewed regularly to ensure that it was promoting good design.

Develop a residents’ reference panel styled after Brisbane’s ‘Your City Your Say’.

T2C1B2

T3C3B3

T3C3B3

T3C3B3

Abuse of objection and appeals processes

Review (in conjunction with stakeholders) provisions concerning standing to lodge objections and appeals against different categories of development application

T2C1B3

Advisory bodies

The following commentary expands on the issue of advisory bodies raised in the option in Table 6 relating to establishing town centre planning advisory bodies.

To address the community concern that there is no statutory role for the community (outside the role of the Legislative Assembly) the Options listed below include:

• changing s.28 of the Planning & Land Act 2002 to provide for community representation on the Planning and Land Council;

• establishing a Planning Review Board with community and other stakeholder membership;

• establishing Town Centre planning bodies, comprising community and professional representation, initially as advisory bodies, with the potential to exercise power to determine (or reject) a range of development applications, and perhaps to oversee consultations or mediation.

However, the possibilities explored in Table 7 below, include the establishment of special purpose advisory bodies, involving a range of community and other stakeholders to participate in the development of significant development plans or provide advice on options developed by ACTPLA and other proponents.

Review consultations indicated the importance of ensuring that people appointed as community representatives were truly representative and accountable to their constituencies, and that planning advisory bodies represent the full diversity of the community.


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Modes of Consultation

Underpinning many of the options discussed here is the idea that good practice in community consultation is a matter of ‘horses for courses’. In other words, it is desirable to adapt consultation practices to the specifics of the case in question. Table 7 below provides one mode of analysis to help determine appropriate consultation modes.

Table 7: Consultation Analysis Matrix – Some Examples WHY

Purpose WHEN

Policy Stage WHAT Output

HOW Mechanism

WHO Stakeholders

RISK Chance of error

Information dissemination

Implementation Informed & engaged public

Letterbox drops; exhibitions; Web site; Stalls; Public notices; Talks to schools, community groups and clubs

Canberra community; Investors and developers

Short term - low Medium & long term - moderate to high

Community information gathering

Issue identification & clarification

Informed decision-makers and strategies (in terms of community needs and views) Evidence-based policy

Residents panels Focus groups Monitoring and Evaluation Charette10

Cross-section of community or affected group(s)

High in short medium and long terms

Expert information gathering

Policy analysis Evaluation & review

Informed decision-makers and strategies (in terms of latest evidence from research and professional standards)

Search conference Expert focus groups Policy advisory groups

Academics & professionals in planning and building design, cultural & social development and environment

High in short, medium and long terms

Consultation Clarification of issues and information sharing through dialogue Policy analysis

Over-arching principles/ values, Strategic Policy Territory, Spatial Plans Code of conduct Charter of rights & responsibilities

Public Forums Day meetings in clubs, public housing complexes, street level consultations

Cross section of community and planning experts, business, and community welfare and culture and environment

High in medium and longer term

Participation: policy development

Development and implementation of policy

Development of controversial community facility

Advisory group Planning advisory panel Consensus conference Citizens jury Public consultations Public Forums Social/cultural consultations

Affected communities, Potential facility users, environment, social, cultural advocates

High in short, medium and long term

Participation: implementation

Implementation Determination of difficult cases

Planning Review Board

Representatives of community, professional and developer groups

High in short, medium and longer term

10 A charette or ‘inquiry by design’ workshop is an intensive workshop where stakeholders are brought together to suggest solutions for complex planning issues. Such solutions include trying to balance planning, economic and social factors as well as urban design and sustainability considerations (see the NSW iPLAN site http://www.iplan.nsw.gov.au/engagement/techniques/charette.jsp).


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7.4 Recommendations The Review has examined both statutory and non-statutory processes of community engagement in planning in the ACT, with a particular emphasis on the latter. The following findings are grouped according to their priority for putting planning consultations on a sounder footing and their short-term feasibility.

In proffering the following recommendations, the Review Team recognises that decisions on the question of community consultation need to be taken in a context that encompasses various factors that are largely outside the current review’s scope or capacity. In particular, there are questions of wider policy and strategy to consider, including how community consultations on planning and development issues ‘fit’ with community consultations on wider matters of policy and public interest.

The question of relative value of resource allocation is also a key factor for decision-makers in this area. In this context, the Review Team has sought to indicate a general assessment of probable cost relative to other options or possible courses of action, but we are not in a position to determine the costs and benefits of our suggestions relative to other wider budgetary considerations. We would, however, make the general observation that it is not prudent to enter into reforms in this area without a willingness and capacity to resource and sustain new initiatives. Under-funded initiatives are likely to not only fail in their own terms, but they may well further diminish confidence in the system and government’s willingness and/or capacity to engage constructively with the community.

Against this background, the following recommendations are divided into three types or levels:

1. Recommendations for specific and/or immediate action;

2. Proposals of a longer-term nature that are strongly supported by the review team, but that may need further development and/or consideration in a wider context; and

3. Suggestions on areas or ideas for further deliberation or study.

Level One: Recommendations for Specific or Immediate Action

3. Building on the Statement of Planning Intent (Attachment B), develop in collaboration with stakeholders:

• a code of conduct for planners

• guidelines for conducting consultations, organised around the level and nature of the policy issue and/or development proposal

• a handbook of consultation techniques – including techniques for engaging inclusively with the community

• A stronger role for the Planning and Development Forum in contributing to policy development and the assessment of major development proposals.

4. Review and simplify planning legislation to make it more transparent and certain.

The objective of these actions would be to help build confidence between stakeholders and in the system. The Government will need to give a commitment to adopting the most suitable form of consultation and to evaluating its performance on a regular basis. Consideration could also be given to developing indicators of progress and effectiveness.


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Level Two: Longer-Term Proposals

Based on the outcomes of the level one actions:

• Establish advisory committees in each town centre. Depending on wider considerations of the Government’s community consultation strategies, these could be ultimately encouraged to consider integrated (social, environmental, economic cultural) planning issues. Special attention should be paid to stakeholder representativeness and accountability to the community.

• Review appeal processes to provide a sliding scale from agreement through negotiation, mediation, and adjudication. Train staff to achieve the best results for proponents and opponents at the lowest level of conflict.

• Review third party appeal rights to minimise appeals from decisions made in accordance with sound consultation and other processes and in accordance with planning statutes and regulations. An independent review panel might provide a cost-effective alternative to some appeals.

• Create an independent planning audit process to increase stakeholder confidence in the probity and accuracy of decisions.

• Establish separation between administrative units responsible for assisting proponents to reach agreement with stakeholders and meet planning standards and those responsible for making decisions on development applications.

Level Three: Areas for Further Consideration

• Set up ACTPLA shop-fronts in each Town Centre to provide assistance with planning.

• Review DA processes to quantify HQSD guidelines where possible.

• Set up a residents’ reference panel on planning and other issues.

• Provide some Town Council type delegations to Town Centre Committees.


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BIBLIOGRAPHY AND REFERENCES

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Australian Capital Territory (Self-Government) Act 1988 (Commonwealth of Australia)

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Brisbane City Council (nd). Your City, Your say. http://www.brisbane.qld.gov.au/about_council/your_say_online/index.shtml.

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Institute for Participatory Planning (1981). Citizen Participation Handbook for Public Officials and Others Serving the Public. Laramie, Wyoming: IPP.

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Ombudsman and Information Commissioner (Ireland) (Emily O’Reilly) (2004). “Right to Know, Right to Privacy”, paper given to the 10th Cleraun Media Conference, 7 February. http://www.oic.gov.ie/25ee_3c2.htm.

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ATTACHMENT A


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Attachment A: Extracts from the ACT Planning and Land Act 2002

Section 9: Authority (ACPLA) functions

(a) to administer the Territory plan;

(b) to continually assess the Territory plan and propose amendments as necessary;

(c) to plan and regulate the development of land;

(d) to advise on planning and land policy, including the broad spatial planning framework for the ACT;

(e) to maintain the digital cadastral database;

(f) to make available land information;

(g) to grant, administer, vary and end leases on behalf of the Executive;

[Note Under the Land (Planning and Environment) Act 1991, s 160B, the planning and land authority is authorised to grant, on behalf of the Executive, leases the Executive may grant on behalf of the Commonwealth] (h) to grant licences over unleased Territory land;

(i) to decide applications for approval to undertake development;

(j) to regulate the building industry;

(k) to make orders under the Land (Planning and Environment)Act 1991, part 6 (Approvals and orders);

(l) to provide planning services, including services to entities outside the ACT;

Note The provision of planning services to somebody other than the Territory is subject to s 15 (Provision of planning services to others—ministerial approval). (m) to review its own decisions;

(n) to provide administrative support and facilities for the council;

(o) to ensure community consultation and participation in planning decisions;

(p) to promote public education and understanding of the planning process, including by providing easily accessible public information and documentation on planning and land use.

(5) The authority may exercise any other function given to the authority under this Act, another Territory law or a Commonwealth law.

Note A provision of a law that gives an entity (including a person) a function also gives the entity powers necessary and convenient to exercise the function (see Legislation Act 2001, s 196 and dict, pt 1, def of entity). (6) The authority must exercise its functions—

(a) in a way that has regard to sustainable development; and

(b) taking into consideration the statement of planning intent.

Note For the meaning of sustainable development, see s 74. The statement of planning intent is dealt with in s. 14.

ATTACHMENT A


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Section 14

sustainable development means the effective integration of social, economic and environmental considerations in decision-making processes, achievable through implementation of the following principles:

(a) the precautionary principle;

(b) the inter-generational equity principle;

(c) conservation of biological diversity and ecological integrity;

(d) appropriate valuation and pricing of environmental resources.

the inter-generational equity principle means that the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations.

the precautionary principle means that, if there is a threat of serious or irreversible environmental damage, a lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

ATTACHMENT B


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Attachment B: Statement of Planning Intent

Simon Corbell MLA, Minister for Planning, 9 December 2003

(available at: http://www.actpla.act.gov.au/aboutus/statements/intent.htm)

Preamble This Government came to office with the stated intention of ensuring that the planning and development of the ACT would be high on the policy agenda and provide for the needs of current and future communities. In this respect, the Government has recognised the significant contribution sound planning practice can make to delivering social equity (People), environmental management (Places) and economic growth (Prosperity). The pre-election document (Labor's Planning and Land Management Policy for Canberra) ‘Planning for People’ articulated the Government's commitment to:

• Building a strategic planning approach; • Developing more open and accountable planning; • Protecting the qualities of the ‘Garden City' and our open space network; • Revitalising our neighbourhoods and local centres; and • Restoring land development to the community.

The program for re-establishing planning as a central function of good governance has already been significant and included the development of an overarching strategic framework, a program of neighbourhood plans for local areas, master plans for commercial centres, policy guidelines, targeted Territory Plan variations and structure planning. The most important reform, however, has been the drafting of the Planning and Land Act 2002 , which amongst other things, resulted in the establishment of the ACT Planning and Land Authority and the ACT Planning and Land Council. This signifies both a political and administrative maturity in the planning and development of the Territory. It reasserts planning as a vital public function that must be conducted in an open, educative and accountable manner. It vests with an independent Authority the stewardship of planning for our social, economic, cultural and environmental well being, and setting a clear vision for our future. The Authority is supported in its role by the Planning and Land Council which is comprised of people with a range of skills and expertise to provide advice to the Authority and the Minister. The ACT Planning and Land Authority is charged with making Canberra a more sustainable capital, and more importantly, an exemplary Australian city. To achieve this it must have capacity, legislatively and professionally, and it must act responsibly, demonstrating honesty, rigour and leadership in its activities. Purpose While the ACT Planning and Land Authority is responsible for overseeing the proper planning and development of the Territory, it must be guided by the wider policy setting and aspirations of the Government. In this regard, the obligations of the Minister and the Authority are clearly expressed in the Planning and Land Act 2002. Section 14(1) of the Act states that the Minister may give the Authority a Statement of Planning Intent:

ATTACHMENT B


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The Minister may give to the Authority a written a statement that sets out the main principles that are to govern planning and land development in the ACT (the statement of planning intent).

Section 9 of the Act requires the Authority to perform its functions taking into consideration the Statement of Planning Intent. It is my intention that this Statement outlines the key principles this Government wishes the Authority to have regard to in preparing its work program, and through the preparation of the planning and development strategies that will govern its decision-making. The Statement is not an explicit direction to the ACT Planning and Land Authority, as the Authority's administration of the planning and development system is at arms length from the Government, however, it must have regard to these principles in the conduct of its functions. The following represents what I believe are the main principles for governing the planning and development of the ACT for the immediate future. These are aimed at helping achieve sustainable development outcomes through improved governance; organisational leadership and capacity building; strategic planning and urban design; a pragmatic balance between community needs, economic development and environmental protection; and a celebration of Canberra. Governance and Legislative Reform No planning and development system is successful unless it is capable of providing relative certainty, appropriate levels of flexibility, consistency and timeliness. While very significant progress has been made in reforming the overarching governance arrangements, an unnecessary level of complexity, specificity, duplication and open-endedness hampers the administration and performance of the system. The planning and development assessment system has long been a contentious issue for our community. The Government believes it should be reformed. A clearer and more time responsive system needs to be established for the making and administration of planning and development policy, including simplifying and clarifying not only the steps involved in the decision making processes, but also the system's expectations of proponents and members of the community who participate in it. A part of any overarching reform agenda can be expected to include:

• The management of the leasehold estate as part of the Territory's planning and development regulation system, with an emphasis on compliance with lease conditions, a reduction of speculation in undeveloped land and simplification of the processes for granting and administering leases;

• Streamlining the Development Assessment system for all activities, including administrative processes that have developed around this system;

• Short-term changes to minimise planning system impediments in Civic, town centres and along transport corridors, including the pre-application phase incorporating High Quality Sustainable Design and Preliminary Assessments;

• Maintaining and promoting a single integrated development assessment path;

ATTACHMENT B


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• Elevating the status and role of strategic planning and policy instruments in guiding decision making and engaging the community early in the planning process; and

• Providing appropriate safeguards for members of the community most directly affected by policy change and development applications.

Professional Leadership and Capacity Canberra has a proud history of planning leadership. The establishment of the ACT Planning and Land Authority heralds a renaissance in planning, and it is critical that the Authority gains the confidence of the community in its administration of the planning and development system. As it matures, and guided by the advice from the Planning and Land Council, the Authority can be expected to provide the Territory community with professional and accountable planning administration; be decisive and proactive; and help Government to establish well-founded policy and follow through with its implementation. In order to achieve this it will be necessary to:

• Develop the human resource capacity of the Authority to respond to the additional and diverse demands expected of it;

• Enhance the professional development of Authority staff and nurture cultural change to cope with the range of competing expectations;

• Increase the capabilities and access of staff to relevant information technology software and the Geographic Information System;

• Encourage decisiveness and creativity within the Authority, alongside expected levels of due diligence and risk management; and

• Improve the community's understanding and tolerance of the planning and development system in providing a forum for resolving issues of concern, but not necessarily to everyone's mutual satisfaction.

Spatial Planning and Sustainable Development In conjunction with People Places Prosperity: a policy for sustainability in the ACT launched by the Government in early 2003, the Canberra Spatial Plan, as part of The Canberra Plan, sets out a framework for guiding a city structure and form that protects the sensitivity of the surrounding environment, including energy and water conservation; priorities for a socially inclusive community; and promotes appropriate economic investment opportunities. Spatial planning is more than just metropolitan planning for city growth - Canberra is more than just a footprint on the landscape; it is a complex system that is part of a region. Whilst providing a long-term strategic planning framework for the development of Canberra and surrounding region, implementation of the Spatial Plan in the short-term will focus on:

• Further cultivating the critical partnerships both internal and external to Government that will be necessary in order to maintain the integrity of the strategic principles in the delivery of the strategy over time, including cross-border relationships;

• Ensuring strong linkages with the Economic White Paper and the Social Plan, within the overarching framework of The Canberra Plan, in order to achieve integrated outcomes;

• Facilitating the planning and delivery of integrated land use and transport strategies to achieve a sustainable urban structure/form and a multi-modal transport system (including walking and cycling) for the City;

• Maintaining the viability and character of a multi-centred City in conjunction with a metropolitan urban growth management strategy that curtails the detrimental impacts of urban sprawl;

ATTACHMENT B


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• Detailed planning for the protection of the rural setting of Canberra, including responding to the recommendations of the Non-Urban Study as accepted by Government; and

• Changing planning policy and legislation to enable the rapid implementation of the key aspects of the Spatial Plan, particularly with regard to the centres of employment both current and future.

Providing for the Community A central role of any Government is to provide for the needs of the community, which includes providing for jobs, education, health, transport, housing, waste management and a vast array of other services. Increasingly the planning and development system has become a repository for a significant number of societal policy areas developed by governments in response to competing interests and expectations. In order to effectively operate in this environment and provide for the needs of a changing community (particularly in respect to its demographic), it will be necessary to:

• Ensure that planning policies and the land release program respond to the objectives of social equity;

• Prepare needs assessment for different groups/activities in respect to the land release program and land availability;

• Ensure that affordable housing stock is provided, and that there is ample housing choice for the changing community profile;

• Promote energy efficiency, adaptable and accessible housing; whole of life-cycle costing for materials and wise water management;

• Ensure that land release and housing offer appropriate independent living opportunities for senior citizens and people with disabilities, and allows them to remain included in community life;

• Facilitate sensitive urban renewal that takes account of local character, whilst providing for a changing social dynamic; and

• Enhance recreational amenity, access to cultural activities and opportunities to access to open space.

Capitalising on good Urban Design Good urban design enriches the experience of the City, creates a unique sense of place and has the capacity to add to the community's cultural and economic well being. The value and significance of committing to good urban design has been recognised by other State governments, the Planning Institute of Australia, the Royal Australian Institute of Architects and the Property Council of Australia, who have developed urban design strategies and detailed design policies to enhance the public realm and the quality of urban architecture. It is vital that the Government takes every opportunity presented, both in private and public sector development, to ensure that there is an appropriate investment in the quality of the urban fabric. This will require policies that clearly articulate the character and quality of the built and landscape form, as well as strategies that not only define key areas for improvement but also facilitate the implementation of such improvements.

ATTACHMENT B


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The key principles are to ensure that:

• The community feels safe, has pride in and enjoys the experience of living and working in Canberra's urban environment;

• Attracting investment in Civic (reaffirm Civic as Canberra's pre-eminent business

centre). This includes one of the directions in the City West Master Plan to connect the City centre and the lake;

• The fabric of the whole City achieves a sensitive balance between the characteristics of Canberra valued by its communities and the aspirations of all Australians for a national capital that symbolises the creative, multicultural, egalitarian and resilient qualities of Australia;

• Investment in the public realm is strategic, adds value to the overall development of the City and enhances the unique landscape qualities of Canberra;

• Encourage the incorporation of high quality public art into major developments and significant public spaces;

• Commercial and multi-storey residential development is of a high design quality and satisfies benchmark green building standards; and

• The urban structure and form for greenfield new suburban developments achieve higher levels of sustainability and responsiveness to the principles of neighbourhood design.

Celebrating Canberra In the next decade there are several centenaries that will provide a focus for Canberra, singular among these is the Centenary of the naming of Canberra on March 12, 2013. Through partnership with the Legislative Assembly, the Commonwealth Government and the Canberra community, this milestone re presents a unique opportunity to celebrate in an enduring fashion, the establishment of the City as a National Capital and a major City in its own right, and promote its attributes on a national and international stage. This is an opportunity to demonstrate innovation and leadership in planning and design, including, but not limited to:

• Delivery on key aspects of the Canberra Spatial Plan; • Delivery on key aspects of the City West Master Plan and Central Area Strategic

Implementation Program; • Promotion of a physical expression of indigenous culture and national reconciliation; • Establishment of national or international forums to explore architecture and city

design; • Delivery of a signature range of Canberra urban furniture and gateway public art

program; • The housing of the democratic instruments of the ACT government in a significant

public building at a prominent site within Civic. • Partnership with the National Capital Authority and collaboration through the Griffin

Legacy Project.

ATTACHMENT C


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Attachment C: Stakeholder Consultations for the Review

Representatives from the following stakeholder groups were formally consulted in the Review. Some individuals representing other groups or representing themselves as active participants in ACT planning issues also sent material to or spoke with the Review team. Academics expert in the area of planning were also consulted.

• Former LAPACs

• Community Councils

• Residents Associations

• Planning Together in the ACT (PACTT)

• Community Groups

• ACT Council of Social Services

• Community groups such as youth, aged, indigenous, migrants and consumers of health services

• Environment and Heritage

• Conservation Council of the SE Region and Canberra

• National Trust

• Business and professional groups

• The Housing Industry Association

• The Master Builders Association

• The Property Council of Australia

• Royal Australian Institute of Architects

• Planning Institute of Australia

• ACT Government

• The Minister for Planning

• The Chief Planning Executive and key staff across ACTPLA

• Community Engagement Unit Chief Minister’s Office

• Office for Sustainable Development, Chief Minister’s Office

• Planning Advisory bodies

• The Planning and Development Forum

• The Planning and Land Council

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Attachment D: Details of Stakeholder Views Reported to the Review Team

The consultation process

The consultation process consisted of group discussions with some stakeholder categories (senior ACPLA staff, community planning groups - who had a preliminary and a follow-up meeting - business and professional groups, and community welfare and environment or heritage NGO’s) in addition to one on one interviews with members of the other groups who had not been able to attend group meetings, senior staff of the Chief Minister’s Office with responsibility for community consultation and environmental sustainability, as well as selected academics. Additional communications were obtained through email messages, a few (unsolicited) written submissions, and telephone conversations. Information obtained from officials in selected State jurisdictions appears in Chapter 4 on Better Practice.

Note on consultations for the Review

It should be noted that given the tight schedule and limited resources for this Review, the consultations with stakeholders were largely limited to discussions with group or peak body representatives (see Attachment C). Some community group representatives expressed concern that there was insufficient time and scope to provide fulsome input. However, all groups and individuals consulted engaged in the process as fully as possible.

Issues

This section details those issues that stakeholder representatives and others identified as being matters of concern. Every effort has been made to reflect the points of view of the relevant groups and individuals, as expressed in our consultations with them.

Common to all groups

All groups identified the following perceived characteristics of stakeholder engagement in planning in the ACT as matters of concern or areas where there are problems:

Lack of trust

A lack of trust characterises many of the relationships between stakeholders in ACT planning. Some members of community welfare groups expressed strong views to the effect that taking part in consultation exercises was a waste of time, as it could not be assumed that they were conducted in good faith. Some members felt that ACTPLA had provided information in the course of consultations that was at least misleading. An example that of this given occurred during consultations on the Dickson Neighbourhood Plan when ACTPLA officials gave an assurance that DVP 200 was “a given”. This, it was claimed, had later been revealed as false of misleading,

Business and professional groups also felt that ACTPLA could not be relied upon to play an active role in supporting development applications that were in keeping with the Territory Plan and embodied high quality design principles. They interpreted this as a betrayal in the face of community pressure.

For their part, ACTPLA staff felt that community planning groups could not always be trusted to honour undertakings of confidentiality when they had been involved in early

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consultations about controversial development proposals. They were able to cite occasions on which trust had been betrayed.

Difficulty in accessing information

Difficulty in accessing information arises from both the physical location of ACTPLA – one office on the north-side for the whole of the ACT, and from the difficulty of gaining access to information in a timely fashion for consultation purposes. ACTPLA does not seem to have made maximum use of the potential of e-Governance to facilitate access to information and participation in planning consultations.

Current hiatus

The former LAPACs were abandoned before an alternative system was ready to replace them. Although LAPACs were viewed by many as an imperfect model, and they have never operated in all parts of Canberra (see section – below for more detailed views on LAPACs), they were nevertheless considered to have offered the best available forum for dialogue between groups with frequently opposing perspectives and differing levels of technical expertise.

Excessive burden of consultation

Although stakeholder groups differed in their assessments of whether adequate consultation was undertaken in relation to different elements of the development and planning system, most felt that there had been substantial growth in the volume of consultation processes undertaken by the ACT Government in recent years. Many stakeholders felt overwhelmed by the range of issues on which their views had been sought. Most said they have had to prioritise issues on which they would be involved, and felt the need for a more strategic and cost-effective approach on the part of the Government.

Community groups, particularly those run by volunteers, also felt that the increased volume of consultation strained their resources (see below).

Need for greater resources for consultation in community organisations

Community organisations, whether they involve paid office-holders or are entirely dependent on voluntary labour, lack the resources needed to undertake useful consultations. Amongst community organisations themselves this is felt primarily as a need for money to pay people to undertake the necessary work.

Community groups may be inadequately resourced to prepare objections or statements of reasons in support of AAT appeals. Sometimes they may lack the resources to pursue an appeal that they have initiated – creating the impression that they have been engaged in vexatious delaying tactics.

Lack of certainty in application of planning guidelines

All parties appear to agree that that the current system does not provide certainty in planning outcomes.

This can arise because ACTPLA staff may experience difficulties in ascertaining what current planning regulations and guidelines affect a development application on a particular block. The same DA may also be subject to regulations from legislation administered by other agencies with different or inconsistent rules and processes, e.g. in urban services or environment.

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Lack of consistency in the application of discretionary guidelines, particularly where these are numerical, can undermine trust in the system. For example, limits on set-backs or height may be exceeded if a DA still achieves good design objectives – placing considerable reliance on the judgement of the decision-maker. Community planning groups respond to flexible interpretation of numerical code with the charge that ACTPLA officers routinely allow developers to “push the boundaries”. Although some business/professional groups do not deny this, others express the view that ACTPLA officers “turn to water” at the least sign of community dissatisfaction with a DA.

This lack of certainty and perceived lack of consistency is associated with a lack of confidence in the overall quality of planning outcomes.

ACTPLA needs to improve communication skills

Good engagement with stakeholders is not simple or easy. It requires officials with a commitment to consultation and a high level of communication skills. ACTPLA needs to improve staff training in communication and ensure that staff able to take the requisite approach are assigned to this important task. There were several adverse comments about the appropriateness of ACTPLA’s making a superficial ‘PowerPoint’ presentation on a complex development application to the Planning and Land Council, or using such a presentation in community consultations, and seeing this as constituting ‘consultation’. At best, such activities are exercises in information dissemination, not two-way engagement.

Planning is too isolated from other policy-making

The development of a city, town centre or neighbourhood requires close cooperation amongst officials working on social, cultural, economic, landscape, environmental, and town planning. Integration of planning with other issues may remove the single-issue bias in much of the current community planning consultations and would offer the potential for improved (social and economic) development outcomes. Community planning groups felt that if community councils and LAPAC-type bodies dealt with a wider range of issues, then they would attract more interest on the part of the community.

Community planning groups

The following issues were raised specifically by community planning groups.

Inaccuracy in ACTPLA information

Many of the community groups consulted felt that information provided by ACTPLA in the course of community consultations was not always accurate or consistent. This undermined trust. Examples provided included:

• population projections for the growth of Canberra which differed from those provided by the “official ACT demographer”, and

• the ACTPLA website – which as at 24 February 2004 contained the message that Local Area Planning Advisory Committees had been abolished from September 2003 [http://www.actpla.act.gov.au/plandev/lapacs/index.htm], but under Public Notification Provisions referred to “written notices to other persons such as Local Area Planning Advisory Committees”.11

11 See: http://www.actpla.act.gov.au/plandev/das/index.htm.

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Several individuals felt that ACTPLA needed to rely more strongly on evidence gathered from rigorous research in developing its policies.

Failure to show that stakeholders have been heard

Consultations carried out under the multi-layered requirements for planning or development initiatives under ACT legislation produce considerable input from the parties who participate, including developers, various groups in ACTPLA, and third parties including individuals in community planning groups. However, there seems to be no clear process concerning the fate of the input. Unless they are given evidence that their concerns have been heard and taken into account, stakeholders are likely to conclude that the consultation process has been pointless.

Developers carrying out pre-application HQSD consultations are not obliged to respond to community concerns, although many do. Similarly, ACTPLA staff determining Development Applications (DAs) or developing spatial or neighbourhood plans, do not appear consistently to provide responses to matters raised by community groups in consultations. One disaffected, but not atypical, member of a community group evocatively described the process of contributing to such consultations as being “like posting a letter to your toilet.”

Reasons for decisions not routinely given

Some stakeholders felt that the only way to be sure of obtaining the reasons for a decision was to go to the AAT. Some said that a well-reasoned refusal was more likely to satisfy likely to.

Confusion about the purpose of consultation

If developers and decision-makers are not obliged even to respond to matters raised in consultation, this raises fundamental questions about the purpose of consultation: why is it being carried out and what are the possible outcomes from the process? Community groups felt that many consultation processes were “tick a box” in character, and were never intended to have an impact on planning outcomes. This suspicion was strengthened when consultations were scheduled at inappropriate times of the year, at an advanced rather than an early stage of development, or at a time such that the period for meaningful analysis and comment was too short. Community groups expressed a preference for being given clear notice of the purpose and limits on consultation – even if this involved a frank acknowledgment that the process was for disseminating and/or gathering information only.

Failure to learn from AAT cases

Community groups felt that ACPLA did not study AAT cases which it had lost to ensure that the organisation as a whole learnt from the experience. It would reassure the community groups and other outside stakeholders to see evidence that ACTPLA was actively integrating the principles established in AAT and other legal cases in its approach to training and decision-making.

Importance of ‘civil society’ groups in the ACT

Given that there is no third tier of government in the ACT, Non-Government Organisations – so-called ‘civil society’ groups – assume particular importance in mediating between citizens and government. They need to be resourced accordingly.

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Need to match consultation process to issue

The importance of employing a method of consultation that suits the particular issue under consideration, was raised in discussions with community planning groups – for example, they would have appreciated the opportunity to have been involved at an early stage on major developments – a more collaborative approach. Some stakeholders pointed out that this sort of approach was adopted by individual ACTPLA officers who were considered able to achieve good outcomes after negotiating with proponents and community representatives.

Business and professional groups

The following are the major issues raised by business and professional groups.

Delays

The current system of processing DAs compares poorly with other jurisdictions in Australia in its multi-layered consultation processes and delays. Under High Quality Sustainable Design (HQSD) rules there must be pre-development consultations, development application consultations, a referral in some cases to the Planning and Land Council, challenges by third parties (with no direct interest in the outcome) and ultimately, an appeal to the AAT. This leads to increased costs or lost income on the part of developers and creates uncertainty. Capital is mobile and will go to jurisdictions where planning processes are less costly.

Anti-competitive tactics and other abuse of the system

Business groups felt that the current system was open to abuse by competitors who wish to delay the development of commercial centres that would create competition for existing businesses. Although competition is not a statutory ground for objection, business groups feel that current processes do not offer sufficient protection against objections or appeals that are fundamentally anti-competitive in motivation.

These groups also interpreted some objections lodged by community groups as frivolous or vexatious, in that they had little chance of success and could only serve to delay the implementation of particular development decisions.

Who should be consulted and have standing to appeal

Related to the issue above is what business and professional groups considered to be the unreasonable scope of consultations on individual DAs, which extend beyond abutting neighbours and involve third parties even where an application complies with the relevant plan and regulations. Third parties may also be able to lodge appeals. The scope for third party involvement was considered to be unusually broad in the ACT.

Need for greater technical knowledge to inform consultation and assessment

Professional and business groups – architects and planners in particular – felt that the current consultation system offers non-experts inappropriate opportunities to comment on and influence technical aspects of building design or planning. This raises once more the issue of the purpose and timing of consultations. Non-experts can provide input on their needs and experiences as consumers of accommodation and frequenters of community spaces. They can raise questions about the application of quantitative planning codes – but are not necessarily well-equipped to comment on the merits of decisions to approve infringements of numerical design standards.

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Property developers felt that consultation would be more productive if those involved in assessing major development applications had a sound understanding of property development principles. Both community groups and ACTPLA staff would benefit from a deeper understand how higher quality design features – such as accessibility for people with disabilities and ‘green’ building standards – increase construction costs and reduce competitiveness (at least until all the demand for these features becomes widespread). By commissioning buildings with high design standards the Government can play an important role in stimulating demand for higher standards. As potential tenants and purchasers observe the value for money in buildings with higher design standards, the demand for cheaper, lower cost buildings will reduce. However, the provision of low cost accommodation remains a problem in this model.

Community welfare groups

These issues were raised by representatives of community welfare groups.

Common failures in process

Frequent defects in government consultation generally, were summed up in an ACTCOSS paper which describes the process as “institutions using ‘consultative policy development’ as a weapon of own-policy implementation rather than as a tool for reaching best outcomes”. Common faults included:

• outcomes are pre-determined;

• information provided is not genuine;

• only ‘constructive’ stakeholders are consulted;

• a divide and rule strategy emerges;

• the input received is ignored;

• feedback or results of the consultation process are not provided; or

• consultation results are not implemented . (Stubbs 2003)

Failure to reach all segments of the community affected

Quality consultation requires commitment, time and other resources. Reaching all segments of a community affected by planning policy or implementation can be difficult. Although representatives of marginalised and other groups can provide useful input, they are no real substitute for engagement with the community.

Where particular groups are represented by a peak body, it is common to invite one or two senior members of that organisation to take part in all consultations or to sit on committees. Whilst this is clearly more economical from ACTPLA’s perspective, it places a great burden on the peak body and its representatives and is not as effective as providing resources (either ACTPLA staff or funding to peak bodies) for more direct interaction with particular segments of the community – for example indigenous or ethnic groups or people with particular disabilities or disadvantages.

Lack of diversity in community input on planning

Peak bodies, such as the Migrant Council, report having well-educated members with an interest in serving on planning advisory bodies, who have expressed frustration at being

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unable to play such a role. It is not clear whether this is because they lack the necessary information on how to participate, or have been passed over. n

ACTPLA staff

The following are the major issues raised by ACTPLA staff.

Non-representativeness of community action groups on planning

Members of such groups are not drawn from a wide socio-demographic range - young people, employed people, people with disabilities, migrants and indigenous people are poorly represented. They are self-selected and do not necessarily report back to any broader constituency. Some such groups are considered to have a very narrow focus; some may even be “single-issue”. Although some take care to report the range of views raised by members, others have a reputation for being dominated by a particular individual or group – which casts doubt on their ability to speak for a community.

Difficulty in engaging representative cross-sections

Although ACTPLA invests considerable resources in consultation processes, most contact is with a limited demographic – predominantly older, retired middle class men. It is more difficult in Canberra than a city like Sydney to reach a broader demographic, as the there is no newspaper read by a broad cross section of the community, nor a single radio station or television program on community issues that would perform this function.

Difficulty in getting cost-effective consultations

Resource intensive consultations are no guarantee that all parties will be satisfied with the final outcome, and thus, provide no relief from complaints by the disaffected. There needs to be a consultation system that identifies:

• priorities amongst planning issues;

• the nature of the consultative process appropriate for each level of issue;

• the end result of the planning process; and

• the unit of consultation for each type of process.

A further difficulty (also noted by some community welfare groups) is that community planning groups are frequently “single issue” in their focus. This may mean that they are not obliged to moderate their views to accommodate the broad policy context within which a controversial decision must be made.

Other groups

Researchers and representatives of other groups (environment/ heritage)raised the following issues about the current system of consultation.

Promotion of adversarial attitudes

One researcher who had studied the system of planning consultation in the ACT had formed the view that it fostered adversarial attitudes between developers and the community. ACTPLA’s intermediary role contributed to this process. Most interactions between opposing interest groups occur in the context of obligatory consultations, objections or appeals. What is lacking is a neutral forum in which representatives of the whole community

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as well as of sectional interests could have vigorous debate designed to identify common ground, in the form of agreed facts and common values.

Inadequate performance evaluation

Some academics expressed the view that ACTPLA did too little to monitor and evaluate planning policy and implementation. Such reviews would create opportunities for stakeholder input. Making public the findings of such reviews – along with and any changes in direction resulting from them – could play a major role in generating confidence amongst stakeholders and improve performance.

Development of appropriate performance standards would be critical for the success of such an exercise.

Inaccessibility of ACTPLA offices

Canberra covers a wide area, but ACTPLA has one Office, located only in North Canberra. This makes it difficult to access for people living in other parts of the city. Metropolitan councils in Australia’s offer the equivalent of planning offices in Canberra town centres.

Canberra too large for effective consultation

Government consultation which extend over the whole of Canberra are unlikely to be effective. There is some evidence (eg NSW Legislative Council Report, 2003) that units of consultation larger than 50 to 100 thousand people do not enable the community to feel heard. Canberra’s government combines municipal and state level functions. There may be virtue in delegating some municipal functions to Town Centre Councils. In the longer term these could be elected and form another level of government.

Failure to integrate cultural concerns into planning

The ACT is behind some other jurisdictions in the extent to which it integrates “cultural” concerns into design and planning of the built environment. To remedy this, major development projects need to be developed with input from a wide range of individuals from the community concerned to ensure that the design enhances positive aspects of the neighbourhood, ameliorates security concerns or irritations and promotes harmonious community interactions wherever possible.

National Capital Authority

Several groups and individuals pointed to the need for an agreement that would bring NCA controlled land within the overall framework for consultation and planning in the ACT. Under current arrangements policies reached after consultation can be undermined if they are ignored by the NCA. The latest example can be found in the controversial development taking place on Commonwealth owned land at the ACT airport.

Advisory bodies


Stakeholders interviewed during the Review expressed some reservations about the Planning and Land Council. Some members of community groups felt that the members, who were mostly from outside Canberra, could not be expected to understand the local significance of the matters referred to them. The Property Council felt that the committee lacked property expertise. Community planning groups have compared the situation of the Council, with paid

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sitting fees, a statutory role and secretariat services provided by ACTPLA, unfavourably with that of community groups – with few resources, no sitting fees and, at present, no statutory role.


Most current Forum members – including the Chairman – were interviewed for the Review. Other stakeholders, including ACPLA staff, were asked for their views about the effectiveness of the Forum. Views are grouped under the Forum’s Terms of Reference below.

Provision of advice on major planning issues and development of new policies and evaluation of existing policies and consultation strategies

Senior ACTPLA staff were unable to site any examples of policy advice or evaluations provided by the Forum.

A particular industry representative expressed the strongly held view that the Forum was in principle a useful arena in which to conduct vigorous discussion amongst stakeholders. Such an opportunity to obtain sound information about the position of traditional adversaries, was rare. However, the potential had not been realised, because robust discussion had not been promoted.

Many Forum members felt disappointed that they had not been given a greater role – with more items on an on-going agenda. They felt that the Government had lost interest in the Forum.

Communication of planning policies and new initiatives to community and member constituencies.

It would be fair to say that stakeholders who had not served on the Forum were ignorant of its activities. Its meetings were held in camera and neither its agenda nor minutes were published. It seems reasonable to conclude that this function has not been performed well.

Evaluation of policies including consultations

It appears that the Forum has not been asked to perform this function.

Other

The Forum has not been as well resourced as the Planning and Land Council. Sitting fees for representatives of voluntary agencies should be considered.

Overall, stakeholders assessed that the Forum had not been utilised in accordance with its terms of reference and had been a source of disappointed to many members. Although many stakeholders felt that the unique constitution of the Forum, with its combination of professional, industry, welfare, environment and heritage, and community planning representation, should be useful, they felt that it needed better resourcing, a clearer mandate and work program, and, most of all, rules of engagement that would make the most of its capacity to provide a neutral arena for debate. Sitting fees for volunteers on such a committee were also an issue. Publication on the ACTPLA website of the Committee’s agenda and minutes would provide some feedback to the community.

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LAPACs

Stakeholders had mixed views about LAPACs. Some thought that they had become too bogged down in the consideration of individual DAs to provide a valuable contribution to broader planning policy. Some former LAPAC members appeared to consider that it was mainly through vigilant scrutiny of individual DAs that such a role could be properly pursued.

There was quite widespread agreement that LAPACs were severely under-resourced – they found it very difficult to deal with the number of matters referred to them. Nevertheless, representatives from those areas – Tuggeranong, Gungahlin and Weston Creek – that have never had LAPACs pointed out that their respective community councils have undertaken many of the tasks performed by LAPACs with very little funding.

Stakeholders representing developers and related interests, felt that the input to the consultation process contributed by LAPACs varied considerably in quality. However, given that achieving agreement with a LAPAC in Pre-Development consultations did not guarantee that consultation processes would proceed smoothly after DA lodgement, they were inclined to the view that this layer of consultation was not productive.

Stakeholders from the community planning area also felt that LAPAC performance varied greatly according to membership and particularly according to the chairing skills of the convenor.

Many representatives from both industry and the community expressed doubts about the “representativeness” of the LAPACs – membership did not necessarily reflect the demographic character or interests of the community, and members were not seen as accountable to a broader constituency. This undermined their capacity to deliver “authoritative” community views.

Proposed Community Planning Forums

Stakeholders consulted for the Review provided negative views about the proposed composition, appointment processes, and functions of the proposed model. The time frame for their establishment was also criticised as being too short. Above all, there was a sense of resentment that stakeholders had not had a significant input to the decision to replace the LAPACs nor to development of the form and functions of the proposed CPFs.

Some community planning groups were particularly aggrieved by the proposal to replace the LAPAC election process with a system of Government appointments, and the proposal to exclude DAs other than “significant” proposals from referral to CPFs, as such proposals were already covered by extensive consultation requirements.

Neighbourhood Plan consultations

Stakeholders, particularly those representing community groups, frequently remarked on the overwhelming volume of consultation processes – but seldom felt that consultations had been satisfactory. They often felt that they had been misled about the real purpose of a consultation, that their views had not really been heard, or, if they had been heard, they had not been taken into account. There was a sense that a statement of reasons for a decision could be gained through an appeal to the AAT but not otherwise. With some exceptions, there was not the sense of partnership that characterises ACTPLA publicity (see box below).

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“Neighbourhood Planning is based on partnerships and collaboration between the ACT Government and those who live, work, play, learn and invest in a neighbourhood. Neighbourhood Planning is about enhancing the quality of life of our neighbourhoods, and their social, environmental and economic sustainability.”

Source: ACTPLA website, www.actpla.act.gov.au/plandev/neighbourhood_plans/ suburbs/dickson/DicksonNP-page1-10.pdf [accessed 10 April 2004]

Despite the formidable amount of resources devoted to consultations by ACTPLA, the stakeholders felt that these were often poorly targeted – particularly in their capacity to engage members of disadvantaged groups, not always characterised by a good match between target group and communication technique, and often conducted at the wrong time – sometimes the wrong time of day, but commonly, too late in the planning or development process.

Documents

ACT Planning Review Report · PDF file4.5 Port Phillip: Toolkit for ... engagement in the ACT planning and development system, ... policy issue and/or development proposal • a handbook