Insights

Abstract

Land use planning is a utopian construct. Land use plans are intended to envision an ideal community whilst the planning process is intended to take the existing reality with all its contradictions and envision a future which is to be produced by a sequence of transformations of what currently exists.

Land use planning should therefore be open to the criticism of being utopian in that it seeks something which is too good to be practicable.

Land use planning in Queensland however is not being criticised by the community as something which is too good to be practicable but rather as something which is too bad to be practicable.

The paper argues that the community’s assessment of the Queensland planning system as dystopian rather than utopian derives from concerns that land use planning is carried out without adequate reference to vision, evidence, the community, the environment, infrastructure, financial prudence and governance.

The paper argues that land use planning should look for and disseminate notions of ideal forms such as Ebenezer Howard's Garden Cities of Tomorrow rather than merely seeking to alienate people and restricting individualism to control the perceived ugly consequences of present day behaviour reminiscent of Aldous Huxley's Brave New World.

Planning's utopian tradition

Politicians, planners and lawyers have more in common than they realise.

Politicians continue to look for and disseminate notions of ideal or utopian forms that are based on our traditions. For example, in addressing the press on 25 May 2010 that the Urban Land Development Authority will take responsibility for the major greenfield areas of Ripley Valley, Greater Flagstone and Yarrabilba, the Queensland Premier stated that "These will be model communities where children can walk to school, workers can live near to their public transport and families will be guaranteed greenspace for recreation and the lifestyle that Queensland is famous for."

Planners and architects also utilise a planning process that takes the existing reality with all its contradictions and envisions an ideal community that is to be achieved through a sequence of transformations of what currently exists.

The language of utopia has underpinned the visions of perfect cities and ideal spaces such as the modernist schemes of Ebenezer Howard's Garden Cities of Tomorrow and Le Corbusier.

The vision of a perfect community based on specified traditions is also reflected in the development of Australia’s post war suburbs of the last century with their strong American tradition and the proposed development of transit oriented communities in this century with their European tradition.

Lawyers like planners also practice in a utopian world where their professional decision making in service of the Crown is expected to be divorced from their personal beliefs.

The utopian ideals of politicians, planners and lawyers alike can be traced to a book titled Utopia written in 1516 by Sir Thomas More, an English lawyer and Roman Catholic Saint.

The book describes from the perspective of a traveller, the social, political and legal systems of the fictional island of Utopia and contrasts those arrangements to the European nation states of the time.

Utopia is described as an ideal community where there is no private property, men and women are educated alike, there is religious tolerance and the advice to and decisions of government, are not conflicted by political reality.

Prophetically the book foreshadows the very conflict between personal beliefs and service to the Crown that would ultimately result in More's execution by Henry VIII for refusing to take the oath of supremacy of the Crown over the Church.

For servants of the Crown such as Ministers and public servants such as planners and lawyers, More's execution by the Crown exemplifies the recurring conflict between our personal beliefs and our professional responsibilities to the Crown.

A person caught in this conflict must make a More's choice. They must strictly adhere to their personal beliefs and suffer, like More, the consequences of their failure to support the Crown. Alternatively, they must accommodate the Crown by compromising their personal beliefs.

Planning's dystopian reality

Given that land use planning is a utopian construct, one would expect that the planning system would be criticised as being utopian in that like More's Utopia, it seeks something which is too good to be practicable.

However, today the planning system is not being criticised as utopian but rather as dystopian, that is something which is too bad to be practicable.

The assessment of the planning system as dystopian rather than utopian appears to derive from community concerns that planning is carried out without sufficient reference to vision, evidence, the community, the environment, infrastructure, financial prudence or governance.

This paper considers each of these concerns and makes suggestions for possible reform to the planning system to ensure a more utopian planning system.

Planning without vision

The planning system is often criticised as being too focussed on detailed matters of development control in particular the failings of the development assessment system in terms of over-regulation, under-resourcing, stakeholder interference and development approval delays.

The focus on development control is a direct consequence of the continuing economic reform agenda commenced in the 1980s which seeks to boost economic performance by increased competition and the use of market or business like mechanisms.

As a result, the planning system was reformed to remove strategic land use and structure planning frameworks on the basis they represented impediments to competition in the private sector and that market mechanisms could better co-ordinate the planning and delivery of land use and infrastructure. For the reasons that are discussed later in this paper, these assumptions, particularly in relation to infrastructure, have proved to be wrong.

It is therefore critical that the planning system renew its focus on the visionary.

The State government has sought to respond to this issue by requiring a strategic framework to be included in a planning scheme prepared under the Sustainable Planning Act 2009. However, the current Queensland Planning Provisions with which planning schemes must comply, do not ensure that either strategic frameworks or planning instruments are visionary.

However, the Queensland Planning Provisions will achieve their stated goal of economic efficiency through consistency of format and structure.

The achievement of this goal will be further reinforced by the fact that since the advent of the Integrated Planning Act 1997 a whole generation of Queensland planners have not been exposed to the strategic planning skills that once characterised the training of their predecessors.

It is interesting to reflect upon the fact that those somewhat ageing planners who are today recognised as the intellectual leaders of the Queensland planning profession did not develop their reputations as development assessment managers who gave expert evidence in Planning and Environment Court appeals. Rather, their reputations as planning experts were made as strategic planners who articulated planning principles in strategic planning instruments that were visionary in their focus.

State and local governments should therefore commit to preparing planning instruments which set out a clear vision of the strategic public interest outcomes to be achieved. This could be facilitated by amending the Queensland Planning Provisions to ensure that planning instruments are:

  • place specific, not generally applicable, as was the case with many planning schemes prepared after the Integrated Planning Act;
  • expressed to be forward looking and not present looking;
  • innovative not mechanical;
  • unique not repetitive.

Planning without evidence

The focus of orthodox planning is on the assessment of development against predetermined quantitative standards. This is clearly reflected in the structure of the planning schemes prepared under the Integrated Planning Act and in the proposed Queensland planning provisions which prescribe the content of planning schemes to be prepared under the Sustainable Planning Act.

The structure of these planning schemes is responsive to the requirements of the Integrated Planning Act and the Sustainable Planning Act which are primarily concerned with the administration of the integrated development assessment system.

State government agencies have responded to the development control focus of State planning legislation by investing significant resources in the administration of the integrated development assessment system at the expense of strategic planning based on evidence.

In my opinion, State and local government agencies have not invested significant resources in evidence-based strategic planning with dramatic consequences, especially in relation to the planning and delivery of infrastructure.

State and local government agencies should therefore commit to strategic planning which is based on evidence. This could be facilitated by the following reforms:

  • The requirement for evidence-based planning instruments should be embodied in the Sustainable Planning Act.
  • State and local planning instruments should be supported by a separate strategic planning document that sets out the planning evidence on which the strategic framework is based.
  • A proposed planning instrument that is not based on planning evidence should be challengeable at law.
  • The outcome statements in a planning instrument should only be able to be set aside if the evidence on which they are based is out of date or there is strong persuasive evidence to the contrary. This will provide more certainty to stakeholders than the current position where "sufficient grounds" can be used to set aside the outcome statements in a planning scheme.

Planning without the community

There is a frequent misconception amongst planners that the rights of landowners to use their land are granted by a planning instrument. It is the common law that grants landowners the rights to use their land.

Planning instruments on the other hand restrict the common law rights of landowners in support of public interest outcomes which benefit the community as a whole.

For example, low density residential development may be restricted to support environmental outcomes, as in the case with the protection of open space, or to support economic outcomes such as the protection of industrial areas or the development of higher density transit orientated communities.

It is therefore incumbent on State and local governments to inform the community and landowners in particular, of the public interest outcomes and supporting evidence that are the basis for the restriction of the rights of a landowner.

State and local governments, acting in accordance with state planning legislation, frequently present the community with a planning instrument, without any comment as to the public interest outcomes to be achieved or the supporting evidence. The community is then requested to provide submissions on the planning instrument, not having any right to seek a review of the planning instrument.

In a situation where the local community is not involved in the preparation of a planning instrument and is not provided with information or a right of review of the planning instrument, it is little wonder that the community feels disengaged with the planning system.

State and local governments should therefore commit to engage the community in the planning system. This could be facilitated by the following reforms:

  • The requirement for local planning instruments to contain local area provisions that are prepared by the local community through a planning process facilitated by local government.
  • The requirement for all planning instruments to be supported by a statement of the public interest outcomes that are being sought to be achieved and the evidence in support of those outcomes.
  • The requirement for all planning instruments to be prepared in consultation with relevant community interests and to be supported by a statement of the community engagement which has been undertaken.
  • The requirement for all planning instruments to be subject to a legal right of review if they are not prepared in accordance with these requirements.
  • Finally, as a general rule, strategic land use and infrastructure planning should be carried out by democratically elected and accountable institutions such as State and local governments and not by the private sector or statutory authorities unless there is an overriding need in the public interest.

Planning without the environment

Planning should also have a relationship to the sustainability of natural systems which should be measured in terms of their environmental resilience and the carrying capacity of the environment in which development is proposed.

Planning should also seek environmental benefits such as the enhancement of degraded natural systems, as a cost of providing for continued development which may adversely impact on existing natural systems.

Whilst it is the purpose of the Sustainable Planning Act to seek to advance ecological sustainability, there is little evidence to support the contention that scientific measures such as environmental resilience and carrying capacity are actually used in the preparation of or the performance monitoring of, planning instruments. From a policy viewpoint, land use planning instruments are generally considered to be a scientific free zone.

State and local governments should therefore commit to ensuring that planning instruments are prepared and monitored on a proper scientific foundation to achieve the sustainability of natural systems. This could be facilitated by the following reforms:

  • The requirement for all planning instruments to be prepared to ensure the sustainability of natural systems and the enhancement of degraded natural systems as a cost of providing for development which may adversely impact on existing natural systems.
  • The requirement for the performance of all planning instruments to be monitored from a scientific perspective in terms of the sustainability of natural systems.

Planning without infrastructure

The community’s concerns with the planning system has been reinforced by ongoing shortcomings in the planning and delivering of critical infrastructure, including electricity generation and distribution (2004), coal ports and rail infrastructure (2005), water supply infrastructure in South East Queensland (2006), public transport infrastructure in South East Queensland (2007), hospital infrastructure (2008) and road transport infrastructure (2009).

The status of these infrastructure networks reflects systemic problems in the planning and delivering of critical infrastructure in Queensland. These problems include the following:

  • First, the State public service has been deskilled in terms of its ability to plan and deliver critical infrastructure, a topic to which I will return later in this paper.
  • Second, the national competition policy agenda of commercialisation, competitive neutrality and privatisation has resulted in planning and delivery functions being shared by an assortment of State government departments, State government owned corporations, local governments, local government owned corporations and private service providers without clear accountabilities. This was exemplified by the confusion of responsibilities over critical public health and safety issues such as water fluoridation and flood warnings in South East Queensland.
  • Third, the planning and delivery of infrastructure such as roads, hospitals and schools which is the capital component of State government functions such as transport, health and education has become divorced from the planning and delivery of the other aspects of those functions. For example, the State focus on capital investment in hospitals and schools at the expense of systems (such as the Health Department payroll system) and people (such as the training of doctors and teachers).
  • Fourth, the infrastructure planning and delivery process has become skewed in terms of responding immediately to the interests of powerful interest groups rather than considered public policy.
  • Finally and most importantly for current purposes, the frameworks for planning and delivery of infrastructure are not co-ordinated and are not integrated with land use.

The State government has sought to address these issues through the following reforms:

Whilst these reforms are strongly supported, they do not go far enough however, and in particular do not address the following problems:

  • First, the Queensland Infrastructure Plan merely recycles the previous policy to prepare annual State infrastructure plans. This was announced by the State government in Strategic Infrastructure for Queensland's Growth in 2000 but was never implemented.
  • Second, it is inherently difficult for strategic planners who do not have the required technical skills to take account of detailed technical considerations or to mobilise the commitment of those who have the detailed technical skills. Any strategic planner who has been involved in the preparation of a priority infrastructure plan for a local government will testify to these problems.
  • Third, the conflicts which inherently arise between different functions can only be resolved by entities with real political power which at the administrative level are the Directors General of State government departments and at the Ministerial level are the Premier and the Treasurer. Ominously, Growth Management Queensland is only an office within the Department of Infrastructure and Planning.
  • Fourth, there has been no integration of infrastructure and land use in local government planning instruments. Infrastructure charging plans and benchmark development sequences under the Integrated Planning Act were replaced by priority infrastructure plans which were prepared by local governments without the benefit of a drafting template until 2009. As a result, the State interest checks of some local government priority infrastructure plans submitted before 2009, are now reaching their fourth anniversary.
  • Fifth, the State government has brought forward, in the name of housing affordability in South East Queensland, the land use planning for some 300,000 people in the major greenfield areas of Flagstone, Yarrabilba, Ripley Valley and Caloundra South without commitment to the planning and delivery of infrastructure. The obvious consequence is that urban development will lead infrastructure.
  • Sixth, the requirement that structure plans for regional development areas, which bestow significant development entitlements on landowners, be made without any legally enforceable commitment by those landowners in the form of infrastructure agreements to fulfil the development obligations necessary to provide for those development entitlements.
  • Finally, the SEQIPP is deficient in that its planning horizon of 2026 does not accord with the 2031 planning horizon of the SEQ Regional Plan and does not take account of the State infrastructure which is now required as a result of the bringing forward of the major greenfield areas and the making of structure plans for regional development areas. Furthermore the SEQIPP does not take account of the significant maintenance burden of existing State infrastructure which is currently unfunded.

The State government should therefore commit to fundamentally reforming Queensland's infrastructure planning and delivery frameworks to address these problems. This process could be commenced by the following reforms:

  • The infrastructure planning and delivery frameworks should be codified in legislation.
  • The infrastructure planning and delivery responsibilities and accountabilities of each relevant agency should be clearly stated in the legislation.
  • Relevant agencies should be subject to a statutory duty to provide information to and co-operate with other relevant agencies.
  • Disputes within relevant agencies should be resolved by the relevant Chief Executive whilst disputes between relevant agencies should be resolved by Chief Executives of the relevant agencies and in the absence of resolution, by the Premier through the cabinet process.
  • If these arrangements are not successful, consideration should be given to the establishment of an independent expert agency with statutory powers to provide the necessary co-ordination and integration of infrastructure planning and delivery.

The consequences of continuing to plan without infrastructure are that State and local governments, particularly in South East Queensland, will continue to be faced with the chronic under-provision of infrastructure for urban development.

Planning without financial prudence

The existence of an infrastructure deficit will continue to place significant pressure on State and local government budgets.

It is clear that insufficient revenue is being generated by State and local governments to fund the infrastructure deficit.

The State government has sought to finance the infrastructure deficit through increased borrowing albeit at the expense of the State's credit rating, increased taxes principally in the form of increased mining royalties and land tax, increased Commonwealth government grants and the sale of State government assets.

It will also be necessary for local governments to increase borrowing, increase rates and to increase infrastructure charges for development infrastructure.

However, the scale of the infrastructure deficit is such that it will be necessary for both State and local governments to find new revenue sources to fund infrastructure for urban development.

This could be facilitated by the following reforms:

  • The introduction of infrastructure charges or a betterment tax for State infrastructure.
  • The introduction of innovative mechanisms such as growth area bonds, securitised borrowings, special charges and business improvement districts which are used in the United States and the United Kingdom to finance local government infrastructure.

Planning without governance

Finally, it is critical that land use and infrastructure planning is carried out by institutions which have appropriate governance structures.

The State government is to be congratulated for completing a substantial local government reform program which has resulted in the amalgamation of local governments to form regional Councils. The new regional Councils are much larger and have a better capacity to undertake planning, development assessment, asset creation and management. (See Infrastructure Australian Major Cities Unit (2010), State of Australian Cities 2010, Commonwealth of Australia, p.129)

However, there is also an immediate need for real reform of the State public service particularly in relation to infrastructure planning and delivery, the public administration of which is beset by a multitude of problems:

  • First, public administration is politicised in terms of being focused on the opinions of influential interest groups rather than public policy with the result that the public interest is often replaced by the private interests of those interest groups.
  • Second, the management philosophy whereby management is seen as a generalist co-ordinating process that does not require technical skills, has resulted in a deskilling of the public service especially in the planning and delivery of infrastructure.
  • Third, the focus on securing federal funding to compensate for the State's weak tax base, economic underdevelopment and the resulting vertical fiscal imbalance has caused power in the public service to move from technical specialists to those who are responsible for finance and intergovernmental relations.
  • Fourth, Ministers of the Crown now appear to consult Ministerial advisers (or private servants) in preference to public servants with knowledge, skills and experience in the relevant area who are concerned with the public interest.
  • Fifth, public administration is not based on a rigorous public policy process of cost benefit analysis carried out in a professional environment but rather is influenced by media driven short term populism that is carried out in a political environment.
  • Finally, it would appear that the predominant guiding principle of public administration is not the public interest but political realities.

The result in Queensland is a decline in policy making capacity; the so–called "hollowing out" of government and a loss of organisational memory. (See Prasser, S, The State of priorities: On Queensland’s infrastructure mess, 2005, p.4)

It is therefore critical in the public interest that the State government commit itself to a process of real public sector reform which will ensure the reskilling and depoliticisation of the public service, particularly in relation to the planning and delivery of infrastructure.

Conclusions

A planning system in which planning is carried out without vision, evidence, community, environment, infrastructure, financial prudence or governance is not utopian in the sense that it is too good to be practicable.

Rather such a planning system is dystopian in the sense that is too bad to be practicable.

Indeed it is something other than planning.

The planning system does not look for and disseminate notions of perfect communities or ideal spaces such as that sought by Ebenezer Howard or Le Corbusier.

Rather the planning system merely seeks to alienate people and restrict individualism to control the perceived ugly consequences of present day behaviour, reminiscent of Aldous Huxley's Brave New World or George Orwell’s 1984.

The planning system emphasises the need for stakeholders to conform rather than excel. As such the planning system as presently structured is incapable in the long term of increasing economic efficiency or achieving ecological sustainability and is in urgent need of fundamental reform.

This paper provides some practical suggestions as to how the planning system may be reformed so that planners can once again pursue Ebenezer Howard's Garden Cities of Tomorrow rather than have their behaviours and actions controlled by a planning system subject to political influences rather than the interests of the individual.

This article has been published by Colin Biggers & Paisley for information and education purposes only and is a general summary of the topic(s) presented. This article is not specific legal advice. Please seek your own legal advice for any questions you may have. All information contained in this article is subject to change. Colin Biggers & Paisley cannot be held responsible for any liability whatsoever, or for any loss howsoever arising from any reliance upon the contents of this article.​

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