Victorian Political News		www.robertclark.net

ResCode: Radical Surgery Needed

(An article published in the September 2000 issue of "Victorian Planning News", the journal of the Royal Australian Planning Institute (Victorian Division).)

With the public consultation process over ResCode entering its final stages, there has now been time for all concerned to form some considered views.

There remains widespread agreement that improvements can be made to existing residential planning rules.

However, it has become increasingly clear that ResCode in its current form will not work. It needs radical surgery if it is to survive.

What are ResCode’s problems? In short: cost, uncertainty, a "one size fits all" approach, excessive restrictions in some aspects, yet inadequate protections in others.

Among those who will be hardest hit are likely to be country town residents and outer suburban home buyers, who often least need and can least afford ResCode.

Some of the specific problems that have emerged from the consultation draft include:

• the cost of site analyses, with amounts ranging upwards from $500 estimated to be added to the price of a single home

• uncertainty caused by case by case decision-making by Council officers on key factors for single homes, coupled with the lack of appeal rights or opportunities for resident input

• the massive increase in Council workloads, which will lead to delays, the need to recruit extra planners (already in short supply) and possibly rate rises

• no time limits within which Councils must make decisions on site analyses, meaning that home building proposals can pile up in Council in-trays indefinitely, bogging down the construction industry and costing jobs

• in country areas, the travelling times involved in Council officers travelling from site to site to verify site analyses

• uncertainty as to whether the building envelope exception to the need for a Part A site analysis will avoid cost and delays in new subdivisions, or simply transfer difficulties to the subdivision process

• dual occupancy developments being allowed without a planning permit

• the need to prepare and obtain Council endorsement of a site analysis for every extension over 10 square metres, even if all Part A standards are to be met and front setback, front fence height and mature tree retention aren’t involved

• excessive restrictions on front fence heights – no front fence being able to exceed 1.2 metres without express Council approval by site analysis endorsement or by local variation

• restrictions on factors such as side windows and side walls that will be unworkable in many instances, especially in inner city areas

• no consideration of overshadowing and overlooking of neighbours’ open space under Part A, but with Part B restrictions that go beyond prevailing norms in many inner suburbs

• the requirement that the floor area of an upper storey be at least 20% smaller than the ground level (with no room for waiver or local variation), which not only will lead in many cases to houses out of character with the neighbourhood, but will also produce absurd results on sloping blocks.

• allowing mature tree protection to be avoided by tree clearance prior to preparing a site analysis.

• subjective and unclear mandatory standards, eg Part B, Standard 3, that "preference" be given to subdivision and development that is "innovative rather than imitative", while still "acknowledging" the neighbourhood character and "respecting" the characteristic built form of other dwellings

• anomalies in the extent of Council discretion, eg front setbacks and front fence heights are totally discretionary under Part A, but can only depart from the mandatory standards under Part B if there is a local varation.

• the absence of procedures to allow Councils to have local variations and neighbourhood character objectives developed and in place from Day 1 of ResCode, coupled with the workload, time and cost requirements faced by many Councils in preparing such variations and objectives

• no local variations being permitted to Part A, even of factors which can be locally varied for Part B

• uncertainty about what balance the "preferred neighbourhood character" mechanism will end up striking between preventing "out of character" developments and allowing innovation and also in allowing planned or unplanned change to occur over time in existing neighbourhood character.

The Minister’s Advisory Committee now faces an unenviable task in trying to do an extensive reconstruction job on the draft under pressure to meet tight deadlines, taking into account a mass of detailed submissions, including a submission by the Department of Infrastructure itself proposing major changes.

How should the Committee go about its task?

The concept of a single code with common standards for both single dwellings and medium density should be kept. ResCode’s greater emphasis than the Good Design Guide on mandatory numerical standards should also be kept.

However, as much as possible of single dwelling and extension construction should take place as of right, through meeting objectively specified criteria (including criteria specified by local variation).

The formal preparation and endorsement of a site analysis, with its attendant cost, delay, and uncertainty, will then be unnecessary for such development. Additional compliance documentation and auditing procedures can be introduced if needed.

For the time being at least, medium density (including dual occupancy) should require a planning permit. While in principle it would be desirable to develop objective criteria for as of right medium density housing, the experience with dual occupancy as of right in the late ‘80s and early ‘90s shows how easily this can go wrong. More work and public debate is needed for a move in this direction.

There need to be established mechanisms for the preparation and approval of local variations and local policies (including any desired vegetation clearance controls) by all Councils which wish to have such variations and policies in place prior to the commencement of ResCode.

This process should have been put in train earlier, but since it has not, it ought to be commenced as soon as possible. Interim local variations may need to be allowed.

Such preparation and approval of variations and policies "in bulk" should allow considerable economies of scale, which should reduce costs and speed up the process. Some standardisation of possible local variations may be needed, both initially and on an ongoing basis.

The Advisory Committee needs to thoroughly review and re-write the narrative standards of the Code to make their meaning and intention clearer.

This may involve (I dread to say) some revisiting of the mandatory/discretionary distinction to deal with situations where a mandatory overall narrative outcome is to be assessed by reference to a range of criteria none of which by itself is mandatory (eg fitting in with "preferred neighbourhood character").

The Advisory Committee also needs to carefully check each of the proposed numerical standards for their practicability on the one hand and their adequacy on the other, and consider whether any additional numerical standards are needed.

This may not simply mean deciding upon the best absolute number for each standard, but may involve finding standards which can be objectively derived from what prevails in the neighbourhood concerned, as does, for example, the Part B front setback standard at present. Roof pitch and front fence height would seem prime examples for such standards, as the Department’s submission to the Advisory Committee has recognised. Clearly, the objective should be to get a reasonable fit in as wide a range of cases as possible, so as to reduce the need for local variations.

Most of this is not likely to prove easy or quick. ResCode is already running well behind its initial timelines. A further round of public consultation may be needed in view of the magnitude of the changes the Advisory Committee may propose.

I called on the Minister as far back as November last year to put in place interim measures for some key factors while the development of the new residential code takes place. Even at this stage such interim measures ought to be adopted while the Advisory Committee works to produce a revised ResCode, with extended timelines if necessary.

I have previous quoted New York Governor Mario Cuomo’s dictum that "You can campaign in poetry. You govern in prose."

To date the Government has failed to translate its election promise poetry into effective prose. Let us hope that the Advisory Committee can at least turn ResCode into a workable document.

Robert Clark MP
Shadow Minister for Planning
robert.clark@parliament.vic.gov.au