Presented by Robert Clark MP		www.robertclark.net

ResCode: Where to now?

(An article published in the February 2001 issue of "Victorian Planning News", the journal of the Royal Australian Planning Institute (Victorian Division).)

The long awaited Advisory Committee report on the draft ResCode has finally been released.

The report is sweeping in its criticism, labelling the June ResCode draft "unworkable" and "impractical and unacceptable".

In its place, the Advisory Committee recommends a model which can best be described as a combination of VicCode 1 and the Good Design Guide, translated into the Victoria Planning Provisions with some extensions and modifications.

The report also recommends lot sizes below which single and double storey dwellings require planning permits, together with a mechanism for councils to vary those minimum lot sizes, and a Neighbourhood Character Overlay in lieu of local variations under Ministerial Direction No.8.

Under the proposals, Clause 54 of the VPPs will cover single dwellings not needing a planning permit or only needing a planning permit under a Neighbourhood Character Overlay. Clause 55 will cover other single dwellings as well as medium density housing. Clause 56 will cover subdivision.

The following are some initial observations on the report.

Quality control within Government

The Advisory Committee report rejects item after item in the ResCode draft, not because of policy differences but because of their impracticability or serious adverse consequences.

A cost-benefit analysis of the draft ResCode prepared for the Advisory Committee by Jaguar Consulting estimates that the draft ResCode would impose costs on domestic construction in Victoria equal to almost 5% of its annual value, a cost equivalent in net present value terms to around $3 billion.

Jaguar Consulting estimate that $6,904 would be added to the cost of an average project built home, $40,828 to the cost of an average middle suburb infill single dwelling and $10,000 to the cost of an average medium density dwelling.

While the methodology and quantification of some aspects of the analysis can be debated, the order of magnitude of this cost burden is staggering.

Although the June ResCode draft now looks dead and buried, it must remain a matter of concern that a document of such appalling quality can pass through all internal review processes and be issued for public consultation as a seriously considered set of Government proposals.

On this occasion, the draft ResCode has been stopped thanks to thousands of hours of input by hundreds of people associated with residential planning, thanks to a massive effort by a group of dedicated and experienced Advisory Committee members, and at the cost of significant delay to the residential planning reform process.

Will we be so fortunate in future?

At the risk of making an obviously political point, the Minister must ultimately accept responsibility for the issuing of the draft ResCode and for the cost and delay it has caused.

It seems an inescapable conclusion that either the Minister instructed or encouraged his Department to prepare the draft ResCode along the lines which it did, or else the Minister did not know his portfolio well enough, or was not able to give it enough attention, to realise that what was being put before him was unworkable.

It is vital that the Government make changes at either a Ministerial or Departmental level, or both, to ensure that such a hopelessly inadequate and damaging set of proposals can never again be inflicted on the community.

Mandatory standards v discretions

The Advisory Committee's report is predicated on a fundamental philosophical view about the role of discretions in decision-making.

The Committee argues in spirited terms in favour of discretionary standards that can be varied on a case by case basis to respond to specific circumstances or to achieve better design outcomes.

None of the Committee's proposed Clause 54 ("Part A") standards are mandatory and only a handful of the proposed Clause 55 ("Part B") standards are mandatory.

The remainder can be varied either by the council under the building regulations where no planning permit is required, or else by the responsible authority.

The test under which a reduction in standards may be allowed is almost identical to the test for departing from techniques under the Good Design Guide.

Further, all but one of the mandatory standards (plant noise) are to be determined by a qualitative test which is open to judgement, eg "Development must respect the character of the neighbourhood".

The Committee argues that despite this it has enhanced certainty by requiring the objectives of each element to be met separately, by providing decision guidelines for departures from standards and by allowing an overlay or local policy to achieve greater certainty for particular standards in particular areas (Report Part 3, p.6).

However, it is debatable how far this goes in allaying resident concern that either at a council level or on appeal inappropriate developments in breach of standards will be allowed to proceed because in the decision maker's opinion there is justification for departing from the standard.

Urban consolidation

A second philosophical position which the Standing Committee strongly advocates is that of urban consolidation, arguing that "Urban consolidation should remain a key imperative in any future code or strategy…" (Part 1, p.81).

Urban consolidation has, of course, been a long-standing theme of Victorian planning policy and is reflected in the VPPs.

However, with a new Metropolitan Strategy currently being developed, it may be time to have a fresh look at urban consolidation and the emphasis, if any, which should be placed on it.

How do we know that urban consolidation should remain a strategic imperative until we have evaluated at a strategic level the extensive/intensive trade-offs available to us?

Urban consolidation is not needed to justify a policy allowing medium density housing or more intensive single dwellings. The preferences of a sizeable minority of the population to live in such housing provide a perfectly valid reason for such a policy.

However, if there is no urban consolidation imperative, there is less, if any, overriding public interest to justify serious intrusion on neighbouring residents.

Adequacy of recommendations

While all aspects of the Advisory Committee's recommendations will need to be carefully examined, the main doubt over the recommendations is whether they adequately protect the interests of neighbouring residents.

The recommendations do provide more stringent standards for building height and front setbacks, and introduce overlooking and overshadowing standards for single dwellings.

The model also makes numerous improvements to wording and presentation.

However, medium density standards such as overshadowing, private open space and side and rear setbacks remain unchanged from the Good Design Guide, and the change to overlooking standards is limited. In some circumstances site coverage may even be higher.

Furthermore, there are doubts about how effective Neighbourhood Character Overlays will prove in practice in allowing local standards to be set to reflect local needs.

While formally the overlay provisions allow new controls and wide changes to existing standards, the Committee envisages that overlays will be used only for "sensitive or highly valued areas and characteristics" (Part 2, p.9).

If Neighbourhood Character Overlays are to play a role even for this limited purpose, it will be vital for the Minister to spell out clearly his requirements for their development, justification and approval and to provide recommended procedures and standard draft provisions.

If not, many councils are likely to regard the cost and uncertainty of developing overlays to be prohibitive.

In addition, councils that have done work to date on local variations should be allowed to carry forward that work to the new regime.

A further area of concern is the adequacy of the building regulation processes for protecting resident interests.

The Committee's recommendations add both new areas of responsibility, such as overlooking and overshadowing, and new decision guidelines to be applied under the regulations.

These will place much greater pressure both on determinations by building surveyors as to whether the Clause 54 as-of-right requirements have been met and on decisions as to whether dispensation from the Clause 54 requirements should be granted.

Moving forward

The Government appears to intend moving forward on the basis of the Advisory Committee recommendations, despite the doubts about the adequacy of protection of resident interests.

Given these doubts, and given that the Committee's model totally replaces the ResCode draft, the Government must be prepared to make significant changes to the model in response to public and professional scrutiny.

These changes may involve not only the wording, criteria and numerical levels of individual standards, but also the approval and appeal processes, the extent to which decision makers may authorise (or require) departures from standards, and the role of locally set standards.

While the Advisory Committee has performed a valuable task in disposing of the ResCode draft and developing a detailed and well written alternative model, there are still many vital issues to be resolved before we have a workable new residential code for Victoria.

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