Ratepayers who wish to formally object to state or local government projects will find their avenues limited to council 'feedback forums' and 'community information sessions' rather than having any legal, enforceable recourse to administrative authorities such as VCAT, under new amendments to Victorian planning provisions.
The amendments VC194 and VC211 which were not exhibited publicly before their gazettal in March and September, are a direct and deliberate limitation of democratic liberties, opponents of the changes allege.
Whether that limitation is warranted against the overall needs of people to see local projects completed is what needs to be weighed in this argument, says City of Ballarat CEO Evan King.
Mr King acknowledges the new amendments to planning provisions for Victoria do limit the right of appeal of citizens, but argues 'the greater good' needs to be considered in getting projects completed.
The new planning provisions remove the right of objectors to make appeals to VCAT objecting to state and local government projects under $10 million. Councils will not have to advertise the projects or seek objections to them.
The amendments to the provisions are also lack transitional arrangements, meaning existing submissions on current projects under application cannot be considered by the City of Ballarat, making the amendments effectively retroactive.
Such retrospective laws make the law less certain and reliable, says the Australian Law Reform Commission.
"A person who makes a decision based on what the law is, may be disadvantaged if the law is changed retrospectively. It is said to be unjust because it disappoints 'justified expectations'."
The question is: is it for the greater good of progressing projects?CEO Evan King
The CEO says he appreciates and understands those concerns ratepayers have, but ultimately he leans towards a utilitarian view regarding to the amendments.
"You're absolutely factually correct: in the end, yes, the amendment does remove that right (of appeal to VCAT)," Mr King says.
"The question is: is it for the greater good of progressing projects? The community is often critical of council in terms of the time it takes to deliver projects. To speed up delivery, something has to give in the end.
"Whether it will be the opinion of people one way or the other, whether the benefit of speeding up projects, the cost benefit of that, is worth that removal of that right to appeal to another level, to VCAT, remains to be seen."
The test case for the new amendment in Ballarat is the Lake Wendouree and Victoria Park Link Lighting Project, which is currently the only state or local project under the $10 million limit.
Resident Stuart Kelly says his and other residents' requests for information about the Lake Wendouree and Victoria Park Link Lighting Project have been routinely ignored for years, and he and other residents have received letters from council saying his submission regarding the contentious lighting project cannot be considered under the new government provisions.
In the letter, the City of Ballarat says 'the amendment to the Planning Scheme does not allow for transitional provisions... the Lake Lighting Permit Application has been deferred to the 27 October 2021 Ordinary Council meeting to provide a community forum to address these changes.'
Mr Kelly is concerned whether the 'community forum' will have any legal input into the permit application process.
"I am somewhat cynical about council applying the recent planning amendments to the Lake Lighting Project," Mr Kelly said.
"One wonders when council planners became aware of this method of avoiding the permit process with the Lake Lighting Project. Obviously the 'urgency' of an early recovery from COVID has not been sufficient for a decision to have been made in the seven months since the application was lodged."
"It seems the project has simply been steamrollered over any objections from the public or from councillors. This project has been developed over at least four years, since the 2017 Lake Wendouree Master Plan, which council formally adopted in principle in November 2019."
Requests for lighting options, for information relating to times of operation, and for data about the potential number of people who the lights would benefit have been ignored, Mr Kelly alleges.
"The permit application was lodged on March 4, 2021. I received acknowledgement of my submission on April 22 and as late as August 6 received a letter from council's planning department saying, 'The planning permit application will be considered by council shortly.'
"Looking to the future, it is worrying that these amendments have no sunset clauses for when the recovery from COVID has passed," Mr Kelly said.
"What other council projects will use this same provision to avoid public submissions and appeal - or even public notice about the projects?"
Even with the best intentions, council officers (whose job is to act in the best interest of ratepayers) have their views modified over time by those that they interact withResident David Cook
Mr King says the VCAT process has been abused in the past as a delaying tactic. To the best of his understanding, no VCAT appeal regarding a City of Ballarat decision in the last financial year was successful.
"Appeals are made which are not on planning grounds," Mr King says, "and appeals to VCAT must made on very particular, planning-related circumstances.
"Council is also bound by planning provisions. So... if something is allowable under the planning scheme, then council has a right to be able to do that (thing) in the end, and anyone appealing is going to get the same response back. It's not going to generate the outcome they're looking for if it's an allowable action under the planning scheme.
"That's part of the issue; people appeal to VCAT on non-planning grounds all the time.It gets caught up in this system of having to go through a process for the sake of someone appealing. If council voted for something contrary to the planning scheme, then certainly there would be other avenues for them to prosecute that (action).
"Bear in mind, these amendments are for projects under $10 million... anything over $10 million can be appealed. I think the Lake lighting is the only council project under $10 million, there's no other project which fits that criteria."
"A person who makes a decision based on what the law is, may be disadvantaged if the law is changed retrospectively," the ALRC says.
David Cook has long experience in standing up for ratepayer and resident rights, and says, as is the case with many government initiatives, justification is presented in the best light and with no mention of potential negatives.
"History would suggest that the financial benefits are usually grossly overestimated," Mr Cook says.
"These matters always come back to the question: what problem are we trying to solve? Here it appears to be the length of time the process takes to complete, and not the actual process itself. The council planning process involves steps which allows various parties' views to be considered. However not are all equal in this process, and the right of appeal to VCAT allows an independent body to adjudicate.
"Councillors make decisions based on information presented to them by council officers; their decisions are biased by what is presented to them. Officers present with a bias that will support their position. Even with the best intentions, council officers (whose job is to act in the best interest of ratepayers) have their views modified over time by those that they interact with - contractors, developers, vested-interest lobby groups, the 'movers and shakers', a relatively small circle that have multiple interactions through the revolving circle of committee memberships.The small people are left out.
"We also know that council officers break contracts into multiple components, and underestimate true costs. For example, this happened with Creswick Road carpark and the City Oval improvements. Under these changes, ratepayers would not be informed of the kind of plans and could not appeal them.
"I believe this to be a poor decision. If we are trying to expedite processes then an alternative solution is to properly fund VCAT so there is not a backlog of cases waiting to be adjudicated."
Mr King says the right of appeal has already been curtailed on major developments for school or hospital sites, when planning authority is lodged directly with the relevant minister and objections are bypassed.
A Minister for Planning spokesperson said the government was "striking the right balance between building for Victoria's needs, hearing council and community voices in decision making and protecting the environment and heritage communities cherish."
"We stand by our decisions to fast-track projects that stimulate the economy while still allowing communities to be involved in planning decisions."
"Our long-standing position to fast-track important projects with demonstrable benefits to our community; like level crossing removals, schools, ambulance stations and disability tram stops means we can deliver these projects more quickly."
Questions to the Minister for Local Government Shaun Leane and opposition shadow ministers for Planning, Local Government, and Government Services and Public Sector Integrity did not receive a response.
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