Sector Conversation Notes - Planning and Building Enforcement Forum

Sector conversation - planning and building enforcement forum

Background

The MAV recently hosted a workshop to provide councils with the opportunity to understand the different approaches to planning and building enforcement.

A total of eight councils shared their approach, what’s working well, and what they have learnt. It also provide the council host with an opportunity to ask questions of their peers.

This is not a verbatim record, but a summary document that attempts to capture the peer to peer conversation during the session. We’d encourage you to contact the council host who facilitated the conversation if you wish to understand more.

Banyule – planning and building framework

 Banyule was overwhelmed by planning complaints about trees, multi-unit developments and illegal building work.

 The Banyule planning and building framework is a risk based approach to enforcement and includes a priority rating for complaints that provides structure around enforcement decisions.

 The Framework was developed using:

o A risk matrix

o Analysis of applications

o Analysis of complaints

o Review of the Australian Standards

 Attempted to understand substantial breaches versus subjective and more minor types of breaches. Identified that building was a significant risk because of risk to life and health.

 The Framework also includes a focus on proactive enforcement. The key challenge is to manage reactive enforcement with the need for proactive enforcement.

 There is an acceptance that not everything can be enforced, so the importance is on having a documented process to identify why action has or has not been undertaken.

 Started using the Framework in March/April 2014. It has been adopted by Council.

 The corporate system is used to manage and track the enforcement.

 Banyule utilises all of the enforcement tools from warnings, pins, VCAT and Magistrates Court. Try to use the strongest enforcement tool.  There is a concurrent need to educate builders into compliance.

 The Framework has influenced other council practices, for example plans will not be endorsed until all plans/requirements are finalised (eg. Engineering, vegetation removal).

 The planning enforcement officers have embraced the Framework. If Banyule were to do undertake the work again they would take a collaborative approach and get planning and building enforcement together to discuss.

 Meetings are organised regularly with developers, tree loppers, real estate agents to discuss topical issues.

 Councillor training is important for endorsement/acceptance of the Framework.

 Melton, Darebin, Baw Baw all report that resourcing enforcement is their biggest issue.

 Stonnington and Greater Dandenong face issues of amenity vs development and political inconsistency.

 Mount Alexander that one of their enforcement priorities is people living in sheds and shipping containers illegally.

 Real estate signs are an issue – volume, impacts

 Complaints, and the noisiness of complainants, doesn’t always fit the risk model.

Melbourne – noise

 City of Melbourne experiences a high volume of noise complaints especially about live music venues. The bulk of these are in the CBD.

 Such complaints are investigated by planning enforcement. Work closely with VCGLR and VICPOL.

 Complaints can also be about garbage pickup, deliveries to businesses, construction noise, buskers (investigated by regulators of busking not planning). Small number of complaints for industrial premises.

 Most bars/taverns and nightclubs have SEPP N-2 conditions on their planning permits. Also dB(A) limits at nearest affected resident.

 Not always easy to identify the source of the noise. There might be multiple noise sources, a canyon echoing effect or noise travelling from another venue.

 Will engage consultants to do acoustic testing. Prepared to pay.  Existing buildings, built a long time ago, are not designed for acoustic attenuation - require retrofitting. Fortunately some of the very old pubs, that pre-date planning permits, do not present many issues.

 The agent of change principle has recently been included in planning schemes. It is too early to tell yet whether it is effective. Recently there have been complaints from occupiers of an apartment building near a music venue. The apartments came after the music venue so council asked the body corporate for evidence that the noise attenuation measures included in their planning permit had been complied with. There has been no response from the body corporate. It is difficult for council to know whether the conditions were complied with.

 Restaurants that morph into bars/entertainment venues require a planning permit for the additional use.

 Patron behaviour outside a premises is often a problem. Complaints are referred to the police. Education of the public is required.

 Construction site issues in City of Melbourne are managed by an arm of the building department. Permits specify construction hours.

Yarra Ranges – environmental issues

 Pre 2008 Yarra Ranges experienced significant volume of environmental related complaints. Out of 1000 complaints each year 400 were vegetation issues. There was very little proactive work carried out. Out of the 400 around 70% required action, mostly through enforcement orders at VCAT. Most clearing was for fire safety.

 There were two dedicated environmental investigation officers and an active on call service with high expectations about response times.

 Much of the work was in or around the Dandenong Ranges, with very active environmental groups, and supportive Councillors.

 Post 2009 and new bushfire provisions, complaints significantly dropped by 75% with the 10:30 and 10:50 rule.

 On smaller blocks, particularly in the Dandenongs, the rules provided for almost total clearing. This was feared but did not happen.

 Complaints still continue but mostly compliance is demonstrated after investigation.

 Most complaints now about earthworks.

 There are no longer two dedicated environmental investigation officers and a change in direction has seen the integration between building and planning compliance. This has maximised the synergies between the teams including overcoming some geographical challenges. There is a total of six enforcement staff for planning and building and prosecution co-ordinator role.  The prosecution coordinator manages these outstanding issues based on a risk matrix priority list and escalates matters to the Magistrates Court.

 Plan to audit high impact/risk planning permits, BMO audit program and proactive pool audits.

 A live issue at the moment is open air burning currently controlled by a local law. There are strong opposing views in the community. Consultation will start soon.

 A cat curfew was introduced as a local law – no cats outside from dusk till dawn. This was the option chosen by the community (60/40). Pressure from all over the State. Council stood firm and as a result of the local law there has been a significant reduction in the impounding of cats. Used the Domestic Animal Management Act to implement the direction

Whittlesea – enforcement in a high growth area

 Whittlesea’s main objective is to achieve compliance and educate the community rather than to prosecute offenders.

 90% of complaints are resolved this way with no need for fine or infringements.

 With an increasing population comes increasing enforcement.

 A lot of reactive work comes following neighbour disputes. For example mechanical repairs, storage, unsightly premises, illegal earthworks, satellite dishes

 Breaches that occur in industrial and commercial properties include external storage on carparks, not maintaining landscaping areas and illegal signage.

 Proactive work includes a Precinct Inspection Program, that has been in place for 10 years, and Eden Park Clean-up Program (1999 and 2008) that included demolition and removal of illegal buildings and works.

 Efficiency has increased with 655 inspections in 1998 with two enforcement officers and 2600 inspections in 2013 with four enforcement officers.

 Process for complaints includes:

o Allocation

o Investigation in less than 5 working days

o Security background check

o Site inspection

o Interviews

o Information recorded

o Verbal enquiry/advice o Follow up inspection

o First written request

o Follow up inspection

o Second written request

o Final written warning

o Infringement notice issued or summons issued for Magistrates Court

o Mediation through council’s soliticitors

o First mention date in court

o Further mention date

o Formal hearing - plea

o Contested hearing

o Verdict

o Application for enforcement order seeking compliance

 Communication between Councillors and parties is conducted through the planning enforcement staff to ensure the integrity of the legal process is not compromised and to avoid any possible confusion.

Moorabool and Melton – swimming pool compliance

 Melton currently undertakes proactive enforcement for swimming pools and spas and Moorabool is contemplating introduction of a similar program.

 The average annual number of deaths in swimming pools has been four in Victoria. However, there is a higher rate of near drownings and loss of quality of life.

 The key focus is around pools without permits. Using aerial photography there has been a significant number of pools identified that do not have building permits.

 On inspecting the identified pools none of them complied.

 There is a need to undertake an education program and active inspection program.

 An amnesty is in place for inspections to encourage compliance.

 Communication/responsibility issues arise between tenants and landlords and create some problems in achieving compliance.  There is also a demarcation issue between the Victorian Building Authority, private building surveyors and municipal building surveyors.

 The process used by the councils is:

o Letter of entry

o Education discussion

o Support to work through a resolution

o Emergency order

 Need for implementation of the Coroner’s report recommendations. Click here for report findings and recommendations. MAV could assist with making the recommendations a reality but each council should also jump on board and advocate for change.

 Some councils have pooled resources to run education programs and these have been effective. Include public safety message through multiple forms of media (print, social media, website, radio etc).

 Pool inspections are not mandated through legislation. Councils have the information to do it but who pays to resource it?

Golden Plains – bushfire compliance program

 Golden Plains has areas of high density of vegetation.

 In 2012 there was opportunity for funding from the Department of Transport, Planning and Local Infrastructure around bushfire management.

 Golden Plains decided to target high risk properties to bring them into compliance. A risk assessment process was conducted identifying properties with risk to life and property, particularly those will full/permanent occupation of a property. This was followed by an on-ground survey. 170 structures were initially identified with 84 letters sent to specific property owners in permanent habitation.

 As part of a concurrent education program, a pamphlet was produced along with posters around the community. There was also a media release and newspaper articles.

 81 out of 84 responses were received (95% response rate). 30% admitted illegal use. More than 25% lied.

 The issues faced were demolition of buildings and balancing costs and recovery as well as compassion versus compliance.  Investigations are difficult and time consuming. Council is under resourced.

 Fortunately there were outcomes in terms of the education process and cultural change. Golden Plains annually audits approximately 35 properties for compliance with planning permits. Compliance seems to be improving.

 A long term strategy is however to be developed.

 Aim to develop relationship with real estate agents and to flag need for planning permit on Land Information Certificates.

Campaspe – Compliance 11 service charter

 Compliance 11 is a service charter to guide the work of council officers in delivering, managing and responding to issues in the enforcement areas of building, environmental health, local laws and planning.

 The Compliance 11 charter was adopted in January 2014 and represents a working agreement with the community that provides both clarity and consistency.

 The development of the charter was an intensive process that involved all compliance staff (about 30) including administration, investigations etc across to departments, Councillors and also community members.

 The approach is about achieving compliance rather than punitive action.

 Decisions are made on a risk based approach.

 It is also fundamentally about communication. Councillors are not involved in making decisions about enforcement but are advised of action in agreed circumstances.

 Operational manuals are in place to set out workflows and link to the system.