Many applications for planning permits do not make it to the Planning Authority. In fact, they may be submitted, decided and acted upon without any public announcement of the decision or publication of any details of the development,

An application can be decided (strictly speaking “determined”) by someone on Council staff if their position has been formally granted the authority to determine the application.

Some Council staff have the authority to decide certain types of applications. They can do that because the General Manager of Council has given their position a delegation under section 64 of the Local Government Act 1993. You can read the delegations as at July 2020 here.

As a general rule, an application will only be passed to the Planning Authority if no staff member has the authority to determine it. If you take a look at a typical agenda item for the Planning Authority you will see a short item entitled “Reason for GPA” which explains precisely why no-one in the Planning Services group could determine the application.

What I would like to address in this post is not delegation per se. It is after all often more efficient to have decisions made by qualified staff were practicable.

But the public invisibility of that process and the absence of accountability for decisions made under delegation concern me greatly.

INVISIBILITY

The situation is Glenorchy lacks transparency. The GCC Coordinator for Planning Services wrote earlier this year that “As there is no legislative requirement to do so Council does not provide public notice of applications that have been determined under delegation nor does it maintain a public register of applications determined under delegation.”

At least three other Councils publish basic details – Hobart City Council (search page for recent approvals only), Meander Valley Council (recent approvals only) and Dorset Council (recent approvals only). Devonport City Council goes further, providing in the agenda for each Planning Authority Committee meeting a list of all approvals since the previous meeting (download a sample).

Even though no legislation compels Council to provide the public with any data about applications determined under delegation, there is clearly no legislation prohibiting it. Council admits that (see Appendix 1 below).

In any case, it would be truly disappointing if a Council took actions only if compelled by law. Much legislation mandates standard or minimal types of behaviour. Any Council which did not explore all legal service improvements would label itself as lacking imagination or an interest in innovation.

ACCOUNTABILITY

There are also potentially serious issues with accountability. The staff determining a planning application under delegation — regardless of their knowledge, regardless of their competence, regardless of their desire to make the correct determination — have little or no accountability for their determination.

Staff must write a report for the Planning Authority if the application goes there, but any report written for a determination by delegation will not see the light of day. And if public does not know the application existed, they cannot ask questions about it.

I suspect the applicant may have appeal rights to RMPAT for example, but no member of the public has any opportunity to have their say.

Two types of decisions are relevant – the initial decision that a DA can be determined under delegation, and the actual determination of the DA.

Delegation effectively eliminates public engagement.

THE PRIVACY FURPHY

On a couple of occasions Council staff, most recently the Director of Planning, have suggested there are “privacy issues” to consider. The most substantial writing on this appears in the agenda of the 25/1/2021 Council meeting in an answer to a Question on Notice. It seems to indicate that there are two classes of DA – those with privacy and those without, and blames legislation for that situation.

Are they suggesting that DAs determined under delegation demand a higher degree of confidentiality than those determined by the Planning Authority or RMPAT?

Are they suggesting that having your DA determined under delegation provides you with a legitimate mechanism to keep your DA secret?

Surely all DAs have the same privacy settings.

OPEN THE BOOKS NOW

The importance of transparency and accountability is unaffected by the size or cost of the proposed development. It is impossible to see any legal or ethical justification for maintaining secrecy over the determination of planning applications under delegation.

The Council’s Planning Application form which can be found here on the Council’s own web site contains a section “Applicant’s Declaration” in which it says

By providing Council with the plans and documents attached to this application (“Documents”), I:
▪ authorise Council to copy the Documents, attach copies to Agendas for any relevant Council meetings and release copies to the public; …

So applicants clearly regard the application as public. This makes Council’s arguments seem simply obstructive.

As a matter of public interest, the Glenorchy City Council should without delay implement the same level of reporting as the Devonport City Council for determinations under delegation.

Appendix 1 – response of Council to question on notice 25/1/2021

[Note that the information requested through the question for each delegated determination comprises only four items – application number, location of development, development type, and date of approval.]

There are provisions in State legislation for making the public aware of applications for discretionary planning permits by requiring that applications are publicly advertised. Provisions also allow representations to be made on these applications to facilitate public participation in the assessment process.

Notification of the granting of a planning permit is only required to be given to persons who made a representation during the advertising period. This is to enable those persons to consider whether they wish to appeal the granting of the permit.

State legislation does not require Councils to publish lists of permits that have been granted on their websites or in meeting agendas. While some Tasmanian Councils do choose to provide information on permits approved under delegation on their websites and/or in Council or committee agendas, the potential benefit that arises from increasing community awareness of what permits have been granted must be weighed against the fact that, aside from persons who made a representation during the advertising period, the public have no ability to challenge or seek changes to a permit once it has been granted. Publishing a list of planning permits that have been granted would potentially raise unrealistic expectations on the part of some members of the public that they could initiate changes to a permit. It would also make public information about properties that is currently known only to the landowner, their representatives and Council, without the consent of the landowner.

Council currently meets all legislative requirements related to the advertising of applications for discretionary planning permits and, in addition, provides copies of these applications on its website for the duration of the advertising period. Further, Council will, on request and subject to receiving the consent of the owner of a property to do so, provide details or copies of a planning permit on a particular property to members of the public. Should State legislation change in the future to require Councils to publish information on permits that have been granted, Council will of course comply with that requirement.

In response to the three questions:

1. Council does not intend to provide a list of permits granted under delegation for the 2020 calendar year, as it is not the practice of Council to provide members of the public with information about private properties that is not required to be made public.
2. Council does not intend to publish a list of permits granted under delegation in the agenda of the Glenorchy Planning Authority as there is no statutory requirement to do so and doing so would make public information about properties that is currently known only to the landowner, their representatives and Council.
3. Council is unaware of any specific legal impediment to publishing a list of
   permits granted under delegation, although any release of such information is subject to the provisions of the Right to Information Act 2009 and applicable privacy legislation. In providing copies of advertised applications on its website, Council is merely facilitating public access to information that is already required by legislation to be made available to the public.

When developers encounter a planning scheme with an enormous amount of discretion in the hands of planning authorities, it is not surprising to find them pushing the envelope with their proposals, relying on the fuzziness of many of the performance criteria in the planning scheme.

Take no notice of those who speak as if they regard the planning scheme as if it were an algorithm that takes the details of the proposal and spits out the single correct recommendation for approval or rejection. Doubt those who dogmatically claim that a proposal is “within the planning scheme” where any discretions are involved.

For example, a proposal could be rejected on the grounds that it has “an unacceptable impact upon residential amenity on land within a residential zone by virtue of increased noise emissions”. There is no magic formula for calculating the impact of noise, for deciding whether it is acceptable or not. Two people could legitimately disagree.

The Macquarie Street Apartments proposal rejected by Hobart City Council earlier this week was clearly a high risk proposal and the developers would have known it. It was double the height of all other buildings within hundreds of metres, and it has all the design aesthetics of a LEGO model made by a toddler.

The developers tried to game the system. They relied on the positive bias of Council staff who, believe it or not, try very hard to make proposals possible. Council staff work to find a set of conditions that makes the proposal acceptable: they very rarely fail particularly if the developer has had the good sense to discuss their proposal with the planners earlier. Only truly awful proposals are recommended for rejection!

In the system they’re trying to game, it makes sense to make the proposal an ambit claim.

Council approval would mean that the developer has what they need, and probably much more. The developer would react to Council rejection with an appeal to RMPAT where the first step is an attempted mediation. An ambit claim means they have something to give away during a negotiation. But they may still get more than they would have from a “safe” proposal at the start.

The developer does nothing illegal or unethical. The system is what it is — a structure created by government. Keep this in mind when reading or viewing material where they show surprise or disbelief that a council could possibly reject, or even question, their proposal. It is not that simple.

Glenorchy City Council announced last week (September 2) that it would reduce speed limits from 50kph to 40kph in some streets in the Glenorchy CBD.

According to the Council’s announcement of their decision, the primary purpose is to “increase safety for motorists and pedestrians as well as contributing to a calmer and slower environment where shoppers can relax and enjoy spending time in Glenorchy“.

But Council’s focus on speed limits bears closer examination.

If the intended aim is to slow traffic, changing speed limits appears to be a cheap option; simply install some signs. But without enforcement (which does cost), they will have little effect.

Council should have given greater consideration to traffic calming measures such as wombat crossings (we already have one in Terry Street). Council has already made a start with some traffic islands in the centre of Main Road, and planned ramps around the section outside Northgate. Traffic calming infrastructure will calm traffic 24/7, with no change to speed limits and no need for enforcement.

If the intended aim is to improve safety, Council could have made Main Road outside Northgate one-way, or even closed it off altogether. Historically, business has always claimed that removing parking outside their business will be bad for their business but most evidence refutes those claims. Read these reports from Sweden and Brisbane (Australia).

We don’t know how fast traffic travels now. Council has published no statistics. While the current speed limit is 50kph, it is very likely that little current traffic exceeds 40kph. Traffic volumes during the day already make 50kph difficult to achieve. And drivers in a CBD street are generally so focused on other traffic, finding parking spaces, noticing changes in traffic lights, and anticipating movements by pedestrians, that a speed limit sign on the roadside will not be noticed.

I did learn from the map in the Council’s announcement that there are already a couple of streets in the CBD with 40kph speed limits (note the blue streets on the map). I doubt any driver noticed. I’ve driven those streets hundreds of times over the years and I certainly didn’t. But then again, I suspect I didn’t break the speed limit.

Interested readers may wish to view a discussion by the Infrastructure Committee (starts at 27:45) of the Hobart City Council on June 24 (2020) about a proposal to reduce speed limits in Hobart. After stating the universally accepted assertion that higher speeds result in more serious accidents, he became considerably more vague repeatedly indicating that “road engineers” would know what speed would be appropriate for each street. In essence, he asserted that the slower the speed, the less serious the accident. No science!

There is a great deal of evidence that we can’t regulate our way to safety. We must design our streets to be safe. Here is just one short article illustrating that proposition.

In summary, while the speed limit changes will probably have no effect on traffic speeds, the announcement of the changes will certainly create a perception amongst the public of increased safety. And if that is the primary purpose, well and good. But let’s not kid ourselves, the changes are symbolic.

References

“The impact of lowered speed limits in urban areas”, Monash University Accident Research Centre, 2008.

Today, in the Moonah and Glenorchy CBDs are over 25 closed circuit TVs in public spaces, mostly on light poles. Council uses its resources to manage and maintain them with no demonstrable benefit to the community.

Funded by the Commonwealth Government, installed and maintained by the Glenorchy City Council, and used by State Police, they record movement across our city. We are all accustomed to seeing CCTV on private property, particularly in business premises, but may not have noticed them in public spaces.

After years of increasing expressions of concern about graffiti by residents and businesses, Council in December 2010 finally decided on a by-law and policy to guide how Council would deal with graffiti on council property and elsewhere in the city. There is no evidence of systematic public consultation. Eight months later in July 2011, it decided to “facilitate in conjunction with all tiers of government and local businesses, through grants, other financial assistance and in kind assistance, the installation of closed circuit TV (CCTV) in the Glenorchy CBD as a pilot project“.

The opportunity to act on that decision arrived at the end of the year when the Commonwealth Government announced the Proceeds of Crime Funding Round for 2012, with a focus on Graffiti (prevention, reduction and/or removal). At its March 2012 meeting, Council decided to take advantage of the opportunity by applying for a grant. It received $123,687 — not bad for a “pilot project”.

But it took another twelve months before Council nailed down precisely how it would evaluate or assess the “pilot”. At its 12 February 2013 meeting it refined the objectives of the pilot to be:

• To reduce reported crime and incidents to Police;
• To reduce reported damage and graffiti within the Glenorchy City municipality; and
• To improve perception of safety and reduce fear of crime.

and listed nine statistics that would be collected as measures of the performance of the CCTV. Council also began to consider how the CCTV would be operated and managed, and what part it would play with crime prevention and detection strategies already in effect in Glenorchy.

The 1 September 2014 Council meeting saw answers to questions from our current Mayor (then Alderman Johnston) asking why reports, statistics, work plans and protocols had not yet appeared. Recent questions to Council revealed that Council has to this day never compiled those statistics, nor has Tasmania Police (to Council’s knowledge). Furthermore, Council has never reviewed the CCTV operation to determine whether it has achieved any of its original objectives.

What do we know of the current situation?

As far as I can tell, CCTV can now be found in these places.

• Barry Street at entrance to Mill Lane.
• Council Chambers roof.
• Glenorchy Bus Mall – Main Road end and Barry Street end.
• Northgate entrance on Main Road.
• Moonah Car Park.
• Moonah Post Office.
• Main Road opposite Moonah Hotel.
• GASP Pavilion on Wilkinsons Point.

None of the cameras are monitored; footage is downloaded if and when it is required.

The CCTV recording system operates on a 30 day rolling cycle. Only the previous 30 days of footage will be available: e.g., on day 31, it will record over day 1 of the 30day cycle.

Council’s CCTV system does not record audio; this conveniently removes any requirement to comply with the Listening Devices Act.

Council’s part in the CCTV operation appears to be to (a) house the recording equipment, (b) undertake an annual maintenance check on all CCTV equipment, (c) review CCTV footage, and (d) provide relevant footage to Tasmania Police if an incident is reported or the Police request the footage.

It is not clear whether Council has any control whatsoever over where CCTV is installed. Approval is required from TasNetworks for any installations or attachments to light poles.

But has the installed CCTV ever achieved its intended purposes? Has Council ever considered whether it does anything apart from making Glenorchy residents feel safe? Does it do even that?

As noted above, Council has never undertaken any evaluation to determine whether the CCTV operation achieved any of its original objectives.

Only Tasmania Police can tell us whether less crime is reported and vandalism has become rarer. But we read in the agenda of the November 2017 Council meeting that “formal correspondence with Tasmanian Police indicated that Police would be unwilling for operational reasons to release any data”.

As far as graffiti is concerned, the Council map website helpfully provides a graffiti page showing historical data. Extracting the raw data gives the following graph.

There is no evidence that the CCTV operation has improved crime prevention or detection in any way, disappointing given the Police Tasmania website says that the preferred role of CCTV systems is “to prevent or reduce the opportunity for crime to occur.”

But that may not matter. If the prime objective is in fact to make people feel safer and it costs little to maintain and operate the cameras, then they should stay. Whether they in fact reduce crime would be neither here nor there. On the other hand, they may be a complete waste of money.

Among Council’s stimulus projects is one named “City Scape”, intended to “create a vibrant city centre for Glenorchy” – an aim I think most would support but believed would arise from the CBD Revitalisation project.

The Council’s latest Quarterly Report says that City Scape is “subject to further review by council” so it’s anybody’s guess what it will eventually look like. But Council clearly expects outdoor dining to be part of it because regulations are being prepared to allow it to happen.

On Monday (July 27, 2020) Council will decide to progress a new by-law about public spaces and infrastructure that will create “opportunities for mobile and footpath dining experiences, to enhance the cultural and social life of the municipality.”

You may wonder why a by-law is needed at all. The problem is the planning scheme. It does list uses and developments that are “exempt from requiring a permit”. But as you can see below [ref], the exemption for outdoor dining relies on Council having a by-law and a procedure for granting licences to operate outdoor dining.

“5.11.1 Use and development including outdoor dining facilities, signboards, roadside vendors and stalls which have been granted a licence under the Council’s relevant By-Law.”

Note that some other Tasmanian councils have made progress towards allowing outdoor dining. Here is a sample.

• Burnie City Council created a by-law specifically for Street Dining earlier this year.
• Central Coast Council passed an Outdoor Dining Policy in 2019.
• Devonport City Council earlier this year created a by-law relating to Street Trading.
• Hobart City Council allows operators to apply for a permit to occupy a public space within the Hobart municipal area to give them more space to trade.
• Launceston City Council approved an On-Street Dining Policy in 2018.

The proposed by-law will replace, simplify and update some by-laws that have already expired. Yes, they do expire. And no by-laws means no offences and no penalties, so Council is finding it difficult to regulate some aspects of public spaces. So the new by-law will also allow Council staff to more effectively manage public spaces and infrastructure.

Watch next Monday’s council meeting live on Facebook on the official council Facebook page. It is scheduled for 6pm on Monday July 27.

Read the meeting agenda and for the other documents for the meeting, such as the latest Quarterly Report which is definitely worth a look, go here.

Since the early days of the current Council, a remarkably high proportion of motions in open Council meetings have passed unanimously without questions or comment. A vote by any alderman against any motion whatsoever has become a noteworthy event. To hear an alderman speak against a motion is just as rare.

Only two issues spring to mind as triggering anything like a true debate. The first related to changing the meeting start time from 3pm to 6pm; I recall aldermen discussing this for over half an hour? The second resulted from significant public pressure for an unconditional opt-out option for FOGO.

After the dysfunction of past years, it may feel comfortable to have Council meetings with no heat, no anger, no disagreement. It may be reassuring to see efficiently run meetings. The aldermen themselves may be pleased to be on their way home early. Universal agreement (or at least consensus) on most issues might be seen by many as desirable given recent history.

On the other hand, before the pandemic people leaving Council meetings would regularly express the sentiment “Wasn’t that a waste of time?” A curious comment given they’d just witnessed an efficiently run and uneventful meeting. What else could they have wanted? And could the lack of any disagreement be a concern? What might it tell us about our council?

If the lack of discussion at Council did indeed reflect identical or similar personally-held views on every issue then Council lacks a diversity of views; that would not produce optimal or creative decision-making. That would be tragic and should discourage voters from voting for candidates as a team in future.

Realistically though, it would be truly remarkable if aldermen did not occasionally have different views. Why don’t we see those differences?

Agreement on all issues could perversely be as dysfunctional as continuous conflict if it is the result of groupthink – where individual desire for harmony or conformity overwhelms the individual desire to express their personal views. It may reflect pressures on aldermen to conform, to present an impression of unity or at least avoid any hint of disunity.

On the other hand, it may indicate that Council is simply rubberstamping results of discussion or workshops elsewhere. Aldermen have already arrived at a consensus, are all talked out, and have nothing left for the Council meeting.

Furthermore, a desire to get home early and keep the meeting short may discourage them from breaking the flow. That would be exacerbated by the scheduling of council meetings on the same day as some workshops. Aldermen may find it difficult to maintain enthusiasm at the end of a tiring day.

The Planning Authority has its own particular pressures.

First, there seems to be huge pressure to accept without question the evidence and recommendations of planning officers and other council staff. But we must keep in mind that much of the material provided by staff consists of professional opinions based on assessments of situations based on assumptions and computer models of unknown provenance and limited evidence of relevance. Aldermen should not feel uncomfortable questioning evidence and staff should not feel threatened by that questioning. Professionals in any field can arrive at different conclusions starting with the same evidence.

And the mere mention of RMPAT sends a chill through the room. Pressures to avoid the expense and resources required to deal with an appeal could easily cause self-censoring. Concerns about possible newspaper headlines describing council as “anti-development” could have the same effect.

None of these possible causes need result in misbehaviour, and this article makes no such accusations. But it’s time that aldermen showed that they have minds of their own. That is not disunity. That is not the antithesis of teamwork. The next time I hear “carried unanimously” announced with enthusiasm, I’ll scream.

Despite the protestations of developers and their flagbearers, the Property Council and estate agents, it is extremely unusual to see a member of a planning authority vote against an application for a planning permit.

Last night (July 13, 2020) the Glenorchy Planning Authority – Aldermen Dunsby, Johnston, Ryan, Sims and Thomas – came close to rejecting an application by an industrial business in Granton to extend their working hours. Currently they start at 7am Monday to Friday. They wish to start at 5.45am. The final decision to approve will not please nearby residents (some as close as 100m away) who have complained about noise issues in the past.

But as the mayor very clearly expressed when speaking to the motion – they cannot consider past behaviour of applicants in making a decision.

The truth of her statement must been particularly galling to the three aldermen – Aldermen Dunsby, Ryan and Sims – who clearly had little faith, having learnt of past noise complaints, that the applicant’s future behaviour would be any better than in the past.

The planning officer in assessing the application had acknowledged the noise issue, and added a condition to the recommended permit.

The condition was, in effect, that the applicant would do the right thing noise-wise for the first six weeks. The three aldermen found this inadequate. After an extended discussion, the meeting conjured up an additional condition that ensures that noise levels are acceptable long-term but the three were still not satisfied.

When time came for the mayor to call for mover and seconder, the situation became a little tense. After some silence the deputy mayor moved the amended recommendations. The mayor called for a seconder and, receiving no response, directly asked the three if they wished to second the motion; none did. The mayor after checking meeting procedure seconded the motion herself to allow discussion to proceed and have a decision (hopefully) made.

What is more, Alderman Dunsby very pointedly asked the mayor, moments before the mayor was about to call for a vote, what would happen if the motion was rejected. She was then told what she should already have known given she has been a member of the authority for over two years, and it appears that persuaded her to vote for the motion when all indications prior to that were that she would oppose it.

Despite speaking passionately, it is somewhat disappointing that none of the three seemed to anticipate that the application might be rejected or not voted on, and did not prepare for that possibility with an alternative rejection motion, perhaps something like

“That pursuant to the Glenorchy Interim Planning Scheme 2015, Council refuses a permit for increased hours of operation (manufacturing and processing) at 1 Whitestone Drive, Granton, for the following reason: The proposal will have an unacceptable impact upon residential amenity on land within a residential zone by virtue of increased noise emissions .”

As a final aside, given the logic behind the assessment of this application, there is little stopping the applicant from continuing to extend working hours incrementally hour by hour all the way up to 24-7.

All in all, a very interesting night at the office for the planning authority.