Bill Wood is fighting the planning issue on two, perhaps three, fronts.Having announced two inquiries into in-fill in the hope of appeasing residents and community groups, last week the builders and developers jumped down his throat and threatened legal action.
The threat of legal action is important, and I’ll come back to it.
At the time of announcing the inquiries (one short-term, one long-term), Wood did not know who was to conduct them. So it seemed like policy on the hop.
To some extent it was making a virtue out of necessity, because both Independent Michael Moore and the Liberals supported an inquiry, and Moore was insisting on a moratorium on development until it was completed.
Both Moore and the Liberals knew that who conducts the inquiry is the most important issue. And so Wood had to stay his hand on the appointment until they were satisfied. In return they took Tuggeranong Homestead and North Watson off the agenda.
Woods’s bureaucrats would not like a loose-cannon inquirer. They would prefer someone safe.
Ultimately, a safe appointment was made and apparently Moore and the Liberals are happy with him. The inquirer, Bob Landsdown, has been a planning bureaucrat for decades. Moreover, he is not the sort to be scathing or critical.
So the likely result will be a finding of “”unintended consequences” of the Territory Plan and perhaps some mild recommendations of some future restrictions on multi-occupancy, but otherwise no fingers will be pointed and there will be general findings that everyone did as well as they could under the circumstances.
Initially, the Master Builders Association agreed with the expedited inquiry, according to Wood. But then the MBA put out a statement that millions of dollars were of development were being held up. It followed this with a statement that the developments were under threat of being held up.
Wood says no developments have been held up. The community groups challenged the MBA to name the developments being held up and say that, besides, the long-term future of the city is more important than a few months of building delays.
Clearly the political pressure is on, with an election around the corner. The pressure is particularly on Wood. Having named himself the Member for Brindabella he unexpectedly finds that some of his constituents are personally affected by planning issues. Hitherto, planning had mainly been a central-Canberra matter. But now dual occupancies are popping up in the outer fringes of the Brindabella electorate near residences where people specifically moved so they could have the traditional suburban setting, thinking they were immune from in-fill.
Under the Hare-Clark system, of course, they can personally vent their anger against Wood and still vote for other Labor candidates.
So what has gone so wrong that Wood finds himself upsetting both sides of the debate so close to the election that he needs a safe inquirer to give him the way out?
There are several explanations. It may be unintended consequences of the Territory Plan, or that a lack of foresight caused the problem in the first place, or that is victim of a legal-legislative mind-set that caused such a defective Territory Plan to get through in the first place. I tend to a bit of each.
And I don’t want to do a Malcolm Mackerras here, but this time last year I wrote a few articles saying the faeces was going to hit the mechanical air-conditioner when ordinary residences got first-hand experience of what the Territory Plan meant. They were pooh-poohed at the time as alarmist nonsense. The Conservation Council and other community groups also warned 18 months ago about defects in the plan.
The builders and developers stayed silent at the time because they liked the plan. It gave them virtual carte blanche. It gave them lots of choice development opportunities and the certainty that if they fitted the guidelines with any redevelopment they could go ahead, irrespective of neighbours or the long-term look of the city.
So they sat mum, hoping that the plan would stay on foot.
Last week’s threat of legal action by the MBA is very pertinent. It is a vigorous defence of the current plan.
The MBA argues that if you have a law, you should be entitled to rely on it, even if it is seen by many as defective. The MBA (or at least their legal advice) argues that you should be able to demand that officials process existing and new applications in accordance with it, notwithstanding that the Minister has said that from the date of his announcement new applications will be affected by the review. The Minister is not the law, the MBA’s legal advice puts it.
(Incidentally, Wood made it clear that existing applications would proceed and he rejected claims that work would be held up.)
There is some technical force in the MBA’s argument. It is like Sir Garfield Barwick’s approach to taxation: taxpayers are entitled to a law that is detailed and certain and to arrange their affairs to suit their own profitability, irrespective of what may have been a different intention when the law was being created.
With the Territory Plan, the intention was the socially sound one of allowing a few people to build granny flats and to allow some in-fill building for more efficient use of inner-city infrastructure. The legal fact, however, was that if you allow one granny flat you allow multi-occupancy throughout the city, and if you allow in-fill in the inner city, you allow it everywhere.
The MBA’s threatened legal action highlights how that intention went sour and highlights the fundamental flaw in the Territory Plan. That is its universality. And it highlights a more difficult political question over the way it was created: that is the consultation process.
Let’s deal with the consultation process first. It happens all the time. I bet, for example, that there are several advertisements in today’s paper seeking community views on things (federal and local). The broad mass of people ignore them. Only the directly interested get submissions in. The Government naively believes it has got a community view and acts on it.
In the case of the Territory Plan, in the early days of the first draft, the developers got a carte blanche. They got a plan which appeared to give them the two things they had long sought: certainty and a process for creation of medium density out of single-residences.
The certainty came with a general principle that if your plans fit the building footprint and other set requirements you will get approval.
The first draft gave that an acceptable social context: you will be able to build a granny flat if you want even if the neighbours don’t like it. It also promoted the socially desirable aim of better use of infrastructure within the present city limits by allowing green patches to be filled in.
The latter were the notorious pink bits of the plan which everyone fussed over, not realising that multi-occupancy was to be the gut issue. To take away the vacant lot that kids play footy on is inconvenient; to allow flats next door is sacrilege.
Going from draft plan to actual plan after an Assembly committee hearing did not change the fundamentals and the builders and developers continued to stay silent in the hope that it would not be subsequently amended when experience inevitably caught up with it. In short, no-one in the political process said: “”Aren’t people going to get upset when next door is turned into two townhouses?” This was despite the fact that they were warned.
Moreover, at the time the people in voterland did not know what was on the agenda. Some ads in the paper about a planning consultative process did not mean much. A letter-box drop with “”Do you want units to go up next door?” might have got a realistic response. But it didn’t happen that way.
It was only when the bulldozers actually came in, did people get agitated.
To quote from the article of last September: “”The Territory plan has now passed the Legislative Assembly and awaits gazettal, probably next month. . . . There are notification procedures and appeal rights. But a right to appeal does not mean the appeal will succeed. If the plan for three-storey blocks of units fits the planning guidelines, it will go through. In the long-term, it is a radical departure from the usual pattern of Canberra’s development _ a change from development of greenfields at the fringe to wholesale redevelopment at the centre. . . Change of that nature is unlikely to occur without a certain amount of aggravation and argument.”
My apologies for the understatement.
In fact I was wrong. I failed to the greater flaw in the plan: its universality. It was not only redevelopment in inner Canberra, but multi-occupancies at Banks that were going to get up people’s nose.
For the plan to work, it will have to fly in the face of the legal traditions of certainty and individual equality before the law.
If Canberra wants to retain its nature as a bush capital with open spaces, plenty of trees and open suburbs it will have to limit multi-occupancy.
That means saying that certain suburbs or sections of suburbs will have no more, others will be limited to, say, 5, 10, or 20 per cent. Once filled, other people will not be able to construct multi-occupancy. This means an inequality for individuals in the interests of preserving the character of the city.
Certainty, too, will have to be compromised.
At present, if the plan fits a building footprint of being a certain distance from certain boundaries, then it must be passed.
This is an asinine, legalistic approach to something which is a question of aesthetics and judgment.
Insisting on, say, a six-metre set back everywhere is stupid. If someone builds close to my northern boundary, I get upset because it blocks my sun; if they build the same distance from my southern boundary it is of less moment. Similarly, I am more concerned with the eastern view if I am on the eastern side of a hill, than if I am on the western side.
Administering such requirements requires judgment, time and money. It is easier for builders, developers and bureaucrats to have set, certain guidelines which apply city wide. However, to create and preserve excellence in city design and the built environment in which we live, it requires more effort, but it is worth it for the majority in the long run.
Bob Landsdown has the task of balancing those conflicting things. It will as much a question of whether the creative town planner in him dominates the bureaucrat him in as the quality of submissions he receives.