Subiaco Councillor | Certified Financial Planner | DAP Expert
23rd January 2015
The Honourable Catherine (Kate) Esther Doust MLC
Legislative Council of Western Australia
WEST PERTH WA 6005
Dear Ms Doust
Submission – Parliamentary Inquiry: Planning and Development (Development Assessment Panels) Regulations 2011
We write to you on behalf of the Striker Balance! Community Action Group in relation to the inquiry into the Planning and Development (Development Assessment Panels) Regulations 2011.
The Striker Balance! Community Action Group formed in March 2013 as a result of a non-compliant development application submitted to the Metro Central Joint Development Assessment Panel (JDAP) for 94 Kitchener Road, Alfred Cove/Myaree in February 2013. Nearly two years on, our action group represents well over 200 residents in the community surrounding the site in question.
On 10 March 2014, the JDAP approved a high-density apartment block (three-storeys, 84-dwellings, 6 housing blocks long, unbroken at any point) at 94 Kitchener Road, an R40-coded site in a gazetted low-density, R20-zoned suburb.
We believe the JDAP’s decision was deeply flawed and made a mockery of all relevant State planning requirements and their stated objective of “proper and orderly planning”. As the process proceeded, we also became concerned that our case was symptomatic of a broader, system-wide problem.
The Development Assessment Panel (DAP) system consists of decision-making panels which are clearly unelected by, unrepresentative of, and unaccountable to the people. As such, we consider them fundamentally undemocratic. Their high level of autonomy and lack of transparency does nothing to engender public trust in the system. To this day we have not received a concise explanation for the approval of such a non-compliant development.
The following facts about our case indicate to us that the DAP system and its Regulations require a major overhaul:
Our major contention in our submission to this present Inquiry is therefore that, if “due process” can lead to such a complete disregard for both basic planning requirements and the clear intent of the Local Planning Scheme, if “due process” can also show apparent contempt for the views of our local government’s Planning Office, plus the unanimous opinion of our elected representatives (our City of Melville Councillors), and if “due process” can also dismiss the torrent of opposition from our local community, and do all this without fear of being accountable to anyone, even the Minister, then what constitutes “due process” here urgently needs serious investigation and overhauling.
It was not in any way surprising to our community to read in the Department of Planning’s Review of the DAP system (September 2013) that, on average, 95% of industry respondents gave the system full marks, while less than 10% of local governments did. The views of those most heavily impacted – the community – were not sought. Quite clearly, this is a system that favours developers and their profit margins to the long-term detriment of communities. And, at the moment, it appears to be able to do so with impunity.
We are aware that, under the updated Residential Design Codes endorsed in August 2013, applicants may choose to seek a variation from the “Deemed-to-Comply” requirements (as set out principally in Table 4 of the codes plus the Local Scheme’s requirements). They may seek this variation through the Design Principles pathway, which allows for some discretion to be exercised by the decision-maker. However, it is highly questionable that these Design Principles should in fact be interpreted in such a way as to completely subvert the purpose of the Deemed-to-Comply pathway. That is tantamount to having two sides of a system that are effectively incompatible with each other.
In such circumstances, it has to be seriously asked what incentive any developer would ever have in going down the Deemed to Comply path (of the R-Codes), if they can make greater profits via the Design Principles route, where the unbridled use of discretionary powers is demonstrably available. Add to this the fact that no one involved is publically held to account, and you effectively create an environment where the system and its intent of “proper and orderly planning” can be seriously distorted, subverted and corrupted.
It seems to us that, if Design Principles cannot be quantified, then they are a massive loophole in the system, and an invitation to such outcomes.
This said, we accept that discretionary powers should exist, since there may, at times, be good reason for granting variations. However, the use of discretionary powers needs to be severely limited (see below) not by Local Planning Schemes, but by the R-Codes, and in the JDAP Regulations themselves. It is our firm belief that If the DAP system continues to have unlimited powers with no accountability so that variations can be so grossly out of kilter with normal expectations and rules, as has happened in our case, then there is a serious loophole in the DAP system making it highly vulnerable to abuse.
In our opinion, their use should therefore be strictly limited, for use only in exceptional circumstances, and those circumstances would need to be justified in writing and publically explained at Council Meetings and DAP Meetings.
We would also like to point out that the inclusion of two local government members as part of the five member assessment panel apparently serves no valid planning or community purpose. The two local government members (i.e. Councillors) are, with perhaps the very occasional exception, in no way qualified to make decisions about applications based on their planning merits, and a few workshops / training sessions will not put that right. To suggest otherwise is to undermine the value of the very qualifications and experience the “expert” panel members bring to bear on the process.
Neither do these local government members, according to the current DAP Regulations, have the freedom to consider or support the views of their own residents and council.
It would appear – and is firmly our view – that the appointed local government members merely serve to provide a thin veneer of democracy to an already seriously flawed system. They serve a political purpose, therefore; not a planning purpose.
If DAPs are to be retained, then, at the very least, their make-up should require a majority of capable local government members who are indeed allowed to represent their constituents during decision-making.
A further area for concern is that the DAP system allows developers to set their own projected costs for developments. In doing so this effectively gives developers the green light to manipulate the system by inflating costs, thereby enabling them to reach the trigger threshold (in accordance with Regulation 5 of the DAP Regulations) for DAP-assessed development applications (i.e. >$3 million), rather than assessment under the more stringent local government planning processes and regulations. One pertinent example of this is the recent Metro Central JDAP decision regarding 58 Kennedy Street, Maylands.
It is important to state that we, as a community, and our particular action group, are not anti-development. On the contrary, we have all been looking forward to the development of the site at 94 Kitchener Road for some time. However, that development has to be in line with community expectations, with regard to the amenity of the locality, and in line with “proper and orderly planning” guidelines. What has been approved through the DAP process quite clearly does not meet any of these criteria.
Suggested Amendments to the JDAP System
In light of the above, we would like the Inquiry Committee to consider the adoption of the following suggestions:
Finally, we feel the community has just cause in requesting that representatives from Striker Balance! be invited to appear at this Inquiry into the DAP systems given our experiences in relation to the Kitchener Road proposal, which went from outright rejection to becoming completely palatable to those who wielded the authority to reject it, despite the fact that two key non-compliances remained. We hope this Inquiry Committee will understand why our community continues to be outraged at the disdain we have been subjected to in this case over the course of nearly two years, and at the lack of accountability and transparency of the DAP system generally, extending to the mediation and post-final-decision stages.
Whether or not the Committee sees fit to grant us this opportunity to speak, please understand that our deeply unsettled community (with the support of more than 3,600+ petitioners) very much looks to this Committee to do everything within its power to bring about a wholesale change to the DAP system, hopefully recommending in the process that a thorough review of questionable approvals such as the one regarding 94 Kitchener Road be undertaken.
We are aware of a good number of other similarly questionable JDAP decisions that have occurred over the last two years. For us, as for those other affected communities we have spoken to and connected with across Perth, it is evident that, in its current form, the DAP system has worryingly systemic shortcomings which, if allowed to go unchecked, will undoubtedly bring grief to other communities in future. We look to you to do all within your power to prevent this.
Marina Hansen Geoff Pearson
On behalf of Striker Balance! Community Action Group for the residents of Myaree / Alfred Cove / Melville