Fixing the Victorian Planning System in the wake of East West Link

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Fixing the Victorian Planning System in the wake of East West Link

As previously reported, Matthew Guy has used his extraordinary powers as Planning Minister to approve the East West Link permits. In doing so he has ignored the majority of recommendations put to him by the independent Assessment Committee. This project was a major test case for how well planning law functions for major infrastructure projects. Unfortunately for those wanting a rigorous, logical, evidence based and transparent process the system has failed.

Aside from the question of the East West Link project is how do we fix the planning system so we can learn from the mistakes?

1. Prohibit the use of a reference design to obtain planning approval.

The use of a reference design to achieve planning approval is a terrible concept. Without a real design which has considered real opportunities and real constraints we cannot discuss the project in any meaningful way that would represent the reality of the project. It is absurd that we needed the East West Link project to prove this point. It causes angst and confusion for the community who have no certain design to even direct their comments and criticisms. A reference design is clearly not acceptable to any other private project in the planning system for good reason.

2. Enable the independent Assessment Committee to determine if sufficient information has been provided to assess the proposal. If they deem it insufficient remove the authority for anyone to approve the project until such time as it has been provided and assessed.

The Victorian Planning System gives unfathomable powers to the Planning Minister. Clearly further checks and balances are required. If the Assessment Committee has insufficient information to assess an application it should have the power to prevent any approval being granted until such time as the information is provided and assessed. Good decision making cannot occur without good information to base those decisions.

3. Require the Assessment Committee determine if design alternatives have been sufficiently considered. Prohibit the approval of projects requiring property acquisition unless the Assessment Committee has determined that design alternatives have been sufficiently considered.

If property is being acquired, land owners and in this case home owners have a right to know if there is a better way to achieve the project. Political considerations should not override a proper planning and design process.

It appears to the Committee that the LMA have not fairly responded to or considered alternative designs

Remarks from the Assessment Committee

No alternative design was exhibited and no alternative has been tested in the manner of the flyover. I do not agree that it is appropriate to describe the exhibited project as unacceptable in the absence of a demonstrated proven alternative

Remarks from Matthew Guy in his East West Link approval decision

4. Require the Assessment Committee determine if community consultation has been sufficient. Prohibit the approval of projects that fail this test.

This requirement would enshrine community consultation as a mandatory requirement in undertaking major infrastructure projects. With the consequences of insufficient consultation being a substantial delay to the project, the proponent would see it as vital that they always cleared tis hurdle first time.

5. For public projects over a $1 Billion require that the business case and procurement method also be within the scope of the Assessment Committee.

It is not for the Assessment Committee to dictate how the government spends its money. However this provision would make sure that the public would have a right to be informed of the financial implications of major infrastructure.

6. Require that the Planning Permits are granted prior to the tendering process beginning. Design changes from the tendering process should be dealt with as amendments to the permit and be subject to their own rigorous planning process.

This requirement achieves two key benefits for the state. Firstly the tender process could accurately reflect the project as approved, avoiding nasty surprises. This would assist in preventing price blowouts due to limiting and controlling variations to the design. Secondly it would provide an opportunity for community consultation and assessment on substantial design changes.

In a democracy, people have a right to transparency and a right to be heard. The East West Link reality where four suburbs have an approved project with an unknown design is a sad example of our broken system. For those screaming at the politicians to ‘rip up the contracts’ for East West Link, don’t forget that there was also a broken system that contributed to this disaster. We need to reform this system urgently or we are destined to repeat the same mistakes.

Victoria Deserves Better. Architecture is for Everyone.

This post originally appeared on The Red and Black Architect blog.

Lead image courtesy Permitted Development.

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Discussion (7 comments)

johnproctor's picture

as a devil's advocate.

in Civil projects about 10% of project cost is design. breaking up that 10% you've got about 1% in prefeasability/business case devleopment/optioneering. about 1% in reference design and about 8% by the bidders and ultimate contractors.

Does it make sense to have strict 'must comply/look like' planning approvals on a project that has completed only 20% of its design effort?

If this was a project that was publicly supported would you be advocating the same thing?

For example with a new train line should we prescribe a design on stations at approvals after that 20% design effort and then limit the level of design ingenuity that last 80% may bring to the table. (eg. they determine they can add an extra entrance within the same cost envelope but it requires alterations to approvals).

and while yes the option of altering approvals would exist when you have a $5 billion performance based contract on the line taking the risk of an updated approvals process with 1-2-3-6 months associated delay wouldn't be very attractive.

There is nothing wrong with performance based approvals its simply slightly more difficult for the public to understand. But ultimately the public doesn't understand a fully formed design - eg. you can't just remove 'column x' from a structure lest it collapse, or the design standards that sit behind how quickly something dives into a tunnel, or how long the site lines need to be along a road, or the economics behind demolishing or saving an existing building etc.

Like the project or not many of the objections to east west link were as ill-informed and ill-founded as the dreaded 'NIMBY' objections to building development applications that eat up a lot of air time on this website and its forums. Perhaps we should change our 'building' planning scheme requirements to open up more information and avenues of appeal to NIMBY's? Perhaps building developers should have to submit alternative designs for their site as well?

The article to me seems an over reaction based on the project that was approved rather than the process that it followed.

Michael Smith's picture

Hi John

Thanks for playing devils advocate.

The East West Link Assessment Committee has found substantial problems in the design of this project and a very large number within the community are also against the project. From what I have seen and read, this is shaping up to be a very bad project for Victorians. The situation we are currently in with the East West Link is due to the political and legal framework in which this project was conceived. Therefore the if the process was followed correctly and led to a bad result the process must also be problematic.

With regards to the amount of design that is appropriate to achieve planning approval I agree that a 100% finalized design with full construction drawings are not appropriate. I am not advocating that. On any project allowing the time and budget for a proper design process will result in a better outcome for everyone.

As for the public not understanding a reference design that is bad enough. If the public cannot understand the final design then how can they participate? It is not good enough to say oh well they couldn't understand it anyway. That almost sounds like you are advocating for the public to be kept in the dark on matters 'on the water' or 'in the tunnel'. The public is made up of some very smart people and they have the right to know how their money is being spent.

The even bigger problem is that the Assessment Committee could not anticipate the final design either. consequently we have a approved project subject to a redesign with very soft wording such as 'investigate' rather than 'ensure'.

As for building developers having to submit alternative designs there is a very big hole in this argument. Private developers on private land can build whatever they like at whatever financial risk, as long as they have planning approval. Where public funds, public land and the acquisition of peoples homes is involved every taxpayer has a stake in the outcome.

We can spend our $18 Billion dollars once. Once the project is built our communities will have to live and die with the consequences.

johnproctor's picture

Sorry for the long response! I don’t think I’ll write another one.

As you say the role of a planning approvals process is not to decide if money is being spent on the right project it’s to decide if the specific project that a proponent is seeking approvals for should gain approval as its environmental and/or social impacts are considered acceptable against relevant legislation.

A debate on how we spend $18 billion differently could start with some other transparent process to decide on spending money. Eg. public approval by plebiscite for all projects over $1 billion, or an ‘Infrastructure Victoria’ process whereby all projects over $1 billion (or $100 million??) need to publish BCR’s or something.

It should not become another matter documented in a planning process that is actually not relevant and not up for assessment. You would just fill up 1000’s of submissions pointing out that the BCR is ‘low’ or ‘high’ or the methodology is flawed but the planning panel would not have a leg to stand on to not approve the project on that basis. It would simply take away from the discussion of the actual relevant issues like in the case of East West Link impacts to Royal Park or Moonee Ponds Creek.

As you have stated the assessment committee recommended delaying approval for the elevated road from Royal Park to the Port. I do not believe this had anything to do with the use of a reference design. They pointed out that the traffic numbers were low unless the western section was built and that there is another project on the same section of road that wasn’t discussed. The grounds for deferral seemed to me to be related more to the external influences and level of assessment that had been completed than on the level of design available.

The government did use the same ‘reference design’ method to seek approvals for the tunnelled section from the Eastern to Tulla Freeways. The assessment committee was happy to recommend approval of the tunnelled section.

As per my original post given the above I see no issue with the reference design methodology for seeking approvals.

I am not suggesting that I as the public should be kept in the dark on such matters – in fact I’m not sure how much more clearly the government could have laid out the design for people who were interested enough to attend the community sessions or search out information online. In the end there was the community sessions which I attended before any ‘formal’ process, the formal submissions period (I made one) and the public hearing (I did not attend). I.e. 3 opportunities to input into the process + many months of opportunities as Trains Not Tolls did to protest, or write letters to the Minister, organise petitions etc.

As a local resident near some of the project works I attended some east west link information sessions. I looked at the property maps that showed the physical works area, I looked at the ‘reference design’ which showed tunnels and flyovers etc, I asked the man controlling the ‘3d view animation’ to show me what I could see from my front door and I asked about the noise requirements during construction. I left with an understanding of what land the project would occupy ‘in some form’ and what construction would entail ‘in some form’ such that I was comfortable that while I will be affected it will be manageable for me.

If I were to number your suggestions (bolded text) 1-6 I would say the following.
1. Reference design process worked.
2. refer below.
3. Options are not relevant to an approvals process. Does the reference design (and its associated footprint) meet the relevant legislation.
4. Lots of community consultation completed for East West Link.
5. Not relevant to an approvals process – maybe consider an alternative process.
6. Would delay project delivery, stifle innovation in tender design and cost the public lots of money.

I see the article as a scatter gun over reaction to the very specific issue the writer has (and much of the community have) with the Minister for Planning’s final decision on one part of this project, rather than an accurate reflection of the entire process (which is really at the heart of your suggestion 2 re: Assessment committee haveing the right to veto until appropriate design is provided). If the Minister for Planning had accepted the Assessment Committee’s report would there be complaints about the process, use of reference design, level of consultation or any else of the above?

Tony Smith's picture

John Proctor, you have an inaccurate or inadequate idea of what community consultation needs to be. As you note, LMA did have a couple of rounds of community information sessions, the first with the western portal still a large yellow circle marked "Design to be finalised", plus private meetings with interested organisations such as my own Moonee Ponds Creek Co-ordination Committee. There was never any procedure for processing community input, let alone community engagement which should be a minimum standard. Nor was the Assessment Committee intended to serve as the community pressure valve it was soon recognised to have become.

The problem with the reference design approach is complicated. It is both too late and too early, largely because of the vagaries of potentially interested parties. Some have valid input at the pre conceptual stage which should be even more valued and utilised given the tragic erosion of professional planning capability in this state. Others only engage when they have a detailed proposal to work against, but can equally provide necessary critique of details based on special knowledge they bring to the table and which needs to be allowed to force backing up the decision tree however far is necessary for resolution. My (Kororoit Institute) submission firstly focused on the notion that the rush had forced a push through approach to at least a couple of dozen specific issues of sufficient magnitude that they should have been read as Wrong Way Go Back. These were mostly picked up by the Assessment Committee as "unsatisfactory". Hard reality is that a project of this magnitude needs 4+ years design iteration to have any hope of providing satisfaction to more than motorists.

We needed to be able to backtrack past Eddington to explorations of City of Melbourne which led to the East-West constraint in ignorance of Dick Hamer's deletion of the Alexander Parade route from Melbourne's future freeway plans. When a minister can declare that history as "axiomatic" justification we have a problem, and one made possible by the absence of any publicly visible, let alone widely agreed, planning framework. The Major Projects Facilitation Act (original and amended) is a response to pressures from rent seeking superannuation pools and has nothing to do with planning processes, beyond leaning on them to provide underwhelming mechanisms.

So your objections to 1 and 4 are deeply flawed. Sure the six points are not the same set anybody else might have come up with, but they make more sense as a starting point or provocation from which to work constructively to come up with something which might get wider support, a meta message applying equally at other levels of this whole politically misconceived project. For now this "obvious" "common sense" project needs to be obliterated so Melbourne can get on with addressing much more significant issues in the interface municipalities which have been indecently starved of infrastructure investment.

Moonee Ponds Creek to Keilor Plains

Michael Smith's picture


I can agree that the business case could be and possibly should be dealt with outside the planning approvals process. The problem is that due to the procurement method and the politics, the public is left to read between the lines as to how fiscally irresponsible this project actually is. My view is that this must be forced into the light of day through a specific mechanism. I can see no reason why the planning approval process couldn't be that mechanism.

With regards to your own property I would presume that your level of confidence is because you are situated East of Royal Park where there is a degree of more certainty as to the design. Even in this case the 'industry innovation' could see your amenity dramatically cut for dollar savings. Spare a thought however for the residents of West Parkville. No one can tell them where the final project will be located, which properties will be acquired and what the effect will be. Despite the unknowns the project is approved. This to me proves beyond any doubt that the process is broken.

Riccardo's picture

The Planning system will never work while NIMBYing is permitted in a broken political system. Political parties and interest-group politics used to mean something, stand for something real. Capital, labour, allocation of power in a society designed for conflict. Now it is a free for all.

I'm not sparing a thought for the residents of West Parkville. The property owners among them must, by definition, be some of the wealthier people in the state, and their rights extend to the limits of their property titles. They bought in the big city, they have to expect the big city to keep growing and developing. Manangatang I'm sure has less vigorous development pressures and a much quieter lifestyle, if that's what they prefer.

Michael Smith's picture


It is heartless and wildly inaccurate of you to cast aside the residents of West Parkville as rich NIMBY's who deserve to loose hundreds of thousands of dollars.

1. Very few of the homes to be lost as per the reference design are stand alone houses, most are apartments and townhouses. These are not 5 million dollar houses, these are 400k - 800k medium density residences.

2. These people are not NIMBY's they are a variety of things including:
Not With Out A Business Case (NWOABC)
Not Without A Better Design (NWOABD)
Not Without Proper Compensation (NWOPC)
Not Instead of Public Transport (NIOPT)
Not Instead Of My Family Home (NIOMFH)
Not In Anyone's Backyard (NIABY)

3. Surely you must feel for the residents of the Elderly Chinese Home who at ages mostly 90+ will have to live the rest of their life next to a noisy 24 hour construction site.

If the State Government decided that people of your postcode should be fined hundreds of thousands of dollars, have their community dismantled and live in a construction site for 5+ years I think you might have a different outlook.

If you are pro tunnel or anti tunnel you can still be compassionate.

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