By Tim Dawkins | 14 Feb 2018

The biennial local government elections have come and gone. In many local government areas, there were considerable nominations for a small number of vacancies when in previous years nominees have often been elected unopposed. So, what is different this year? Power.

Local government does not have the power to create the rules. And for major proposals does not have the power to determine the development applications. So it is interesting that we had historically high levels of nominations of residents standing for office.

Development control powers held by the local government are ‘on loan’ from the State Government because local government is a statutory construct of the State Government. A desire to move away from this vulnerability and servitude is at the heart of the push for constitutional recognition of local government. This would provide local government with significantly increased validity.

The tension between the local governments and Development Assessment Panels (DAPs) is a recurring theme in electoral material from candidates running in local government elections. DAPs were introduced in 2011 and generally apply to development applications with a value of over $2 million. Conceived during Planning Minister Alannah MacTiernan’s tenure and implemented by Planning Minister John Day, they have enjoyed bi-partisan support of the two major parties and survived the recent change of government.

One of the most positive shifts towards improving architectural outcomes has been the increased reliance on Design Review in the Development Assessment process.

DAPs were introduced to improve and de-politicise decision making, and ultimately to reduce the number of appeals to the State Administrative Tribunal (SAT). Justice isn’t cheap, and the SAT is an expensive institution to run. It has low application fees and is a no cost jurisdiction. A significant financial burden is left on the State to fund its operation, particularly when matters presented for review do not have a robust consideration of the prevailing planning framework but rather the popular outcome sought by a reactive local community.

However, it is not just DAPs that have eroded the power of local government. In 2015, the State Government introduced the ‘deemed provisions’ — or correctly, Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015. The deemed provisions override the Local Planning Scheme of all 139 local governments in Western Australia and enforce consistent measures in dealing with various planning matters. As a result, the State Government has the final say on all local planning strategies, local planning schemes, planning scheme amendments (such as rezoning), structure plans and activity centre plans. The only ‘planning tool’ that local government has absolute control over our ‘Local Development Plans’ (LDPs). However, LDPs can only be prepared where the Western Australian Planning Commission (WAPC) has authorised them, so their use and application by local government is limited.

Perhaps those nominating for council understand the limited role in the determination of strategies, plans, scheme and applications. They understand the value in negotiation, creating effective relationships that can arrest lost ground in the power dynamics, and work towards sharing power.

I believe our serving elected members of local government are slowly starting to understand that they cannot simply be reactive and respond on an application by application basis. The most effective way for a local government to regain power over outcomes is to prepare a well-considered scheme that clearly identifies a vision, sets limits and defines a future built form. The scheme will need to demonstrate how it meets the requirements of State Government policy, such as the capacity to achieve the identified dwelling targets. If the scheme addresses the planning framework, it is likely to be endorsed by the State without substantial change. Once adopted, the local government can provide greater certainty of outcome, regardless of the actual; decision-maker—as a DAP or the SAT can only approve a development against the limits set out in the Local Planning Scheme. Despite what may be stated by some elected members, DAPs are not a law unto themselves—they are a guardian of the law.

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