Use of planning agreements to support sustainability and environmental preservation

• Author: Rebecca Leshinsky
• Position: Swinburne University of Technology, Hawthorn, Australia

1 Introduction

Since the, 1970s, protection of the environment has been an important component of the Australian land use and development landscape¹. As Australia moved to implement international sustainability principles into its domestic law at both State and Federal levels², these tenets have become fundamental foundations for the planning and environment system. Legislation such as the Federal Environment Protection and Biodiversity Control Act 1999 (Cth) (“EPBC Act”), the Victorian state Environment Protection Act 1970 (Vic) (“EP Act”), and Planning and Environment Act 1987 (Vic) (“P&E Act”), have integrated into the foundations of planning and environment legislation³, enduring respect for sustainability and environmental concerns and values. In some Australia states, this has been taken a step further with the introduction of state based climate change legislation⁴. Australiass's domestic legal system has traditionally pursued the course of a regulatory regime based on prohibition, licensing and enforcement. “Command and control” regulation, via statute and subordinate legislation⁵, has been the preferred method of protection for Australia's natural resources and heritage sites ( Bates, 2010 ; Gunningham and Grabosky, 1998 ).

The focus of this paper is threefold. The first part develops a contextual framework for planning agreements, drawing generally on collaborative planning theory and practice. The paper then applies this framework to an Australian case study by exploring the use of planning agreements pursuant to section 173 of the Victorian Planning and Environment Act 1987 (P&E Act) as implemented by the Municipality of Casey (known as the City of Casey), to protect the environmental surrounds of the Royal Botanic Gardens in the suburb of Cranbourne. The final part of the paper highlights shortcomings in enforcing the sustainable principles envisaged by the planning agreements and suggests that it is the goodwill of local residents that can only ensure the preservation of the environmental values and vulnerabilities of the botanic character of the surrounds to the botanic gardens.

2 Communicative planning and planning agreements

2. 1 Communicative planning in context

There are alternative approaches to planning and over time, the development of planning theories has followed different paths, one of which takes a “process” or “communicative” approach. The basic assumption of this approach originated from the perspective of Habermas (1984, 1987, 1993) , and was further developed and applied to planning by Forester (1989, 1994) , Hoch (1992) , Innes (1994, 1996) , Healey (1992b, 1996, 2006) and others, giving rise to what has been called “communicative planning” ( Forester, 1989, pp. 137-62 ), “planning through debate” ( Healey, 1992b, p. 160 ), “inclusionary discourse”, “collaborative planning” ( Healey, 1998, pp. 1542-4 ), “consensus building” ( Innes, 1996, p. 461 ), and “argumentative planning” ( Fischer and Forester, 1993, pp. 5-15 ).

When examining communicative planning issues, some authors concentrated on the works of the democratic and collaborative planning process. Forester (1993) and Sager (1994, 2001a, b, c, 2002) searched for ways to realize Habermas' communicative process, while Innes (1995) and Healey (1993, 1997, 1998) identified the best procedures or ways to achieve successful consensus building in planning. Other researchers are interested in process analysis and have examined the process and behaviour of participants. For example, Healey (1992a, b, 1995, 1997) and Hoch (1992) investigated the policy discussion process in planning practice. In any society, speaking, understanding, acting, and interacting, set social contexts. The institutionalist approach or “new institutionalism” ( Healey, 1997, p. 55, 1 ) is commonly used to study communicative planning and is based on the concept of individual identities. Through such contexts, frames of reference, ways of valuing, ways of acting, systems of meaning evolve ( Healey, 1993, pp. 85-7 ). Such frames, ways and systems eventually become the cultural foundations of everyday life. This active work of social construction is framed and interlaced by entities such as the state organization that shapes our opportunities and values. The institutionalist approach is therefore, the analytical tool that identifies how relations between agencies and structuring dynamics play out in specific situations and how power relations and material outcomes change ( Healey, 1998, 2000 ). More importantly, the institutionalist approach considers how institutional design produces “zero-plus resolution” outcomes ( Healey, 1997, 2000 ; Innes, 1995 ). This leads to an interest in how material and symbolic outcomes are produced ( Healey, 2000 ).

2. 2 Communicative planning, law and planning agreements

No particular form of institutional design or arrangement was specified in the institutionalist discourses on communicative planning and different institutional arrangements could be made to accommodate communicative planning so long as the decisions that emerge have been made by consensus building. This is so even though some authors note that certain institutional designs may have their own barriers for “consensus building” by virtue of their governance structure ( Innes and Gruber, 2005, pp. 185-96 ). Innes and Gruber developed a conceptual matrix of styles to classify different planning styles (institutional arrangements) into convincing, co-opting, converting, or co-evolving. “Institutional design” notes Alexander (2006, p. 4) is:

[…] designing institutions – the devising and realization of rules, procedures, and organizational structures that will enable and constrain behaviour and action so as to accord with held values, achieve desired objectives or execute given tasks.

Terms such as “institutional designs” or “institutional arrangements”, include “law” (planning legislation, zoning law), “governance”, “contractual arrangements”, “forms of coordination” and any other man-made rules that affect resource allocation ( Lai et al., 2009 ; Lai and Hung, 2008 ). They also include planning conditions and planning agreements. Planning conditions play an essential role in environmental planning particularly given the near universal acceptance of the concept of sustainable development and the widespread reception of the paradigm of communicative planning ( Healey, 1996 ) in the development control arena. The body of research literature on planning conditions is still in its infancy ( Lai et al., 2009 ) with more having been written about their compliance ( Turland, 1990 ; McKay et al., 2003 ) and hypothetical impacts ( Willis, 2006 ). Still less, has been written about planning agreements and their effectiveness as a planning and preservation instrument ( Eccles and Bryant, 2011 ; Dwyer, 2006 ).

Lai et al. (2009) propose that the potential contribution of communicative planning to sustainable development lies in the possibility of the general public, as stakeholders in the environment empowered by planning legislation to make comments on planning proposals, in offering constructive suggestions which could help better shape the environmental outcome of approved projects through influencing the number and nature of planning conditions. Given the dearth of literature on planning agreements, it is timely to consider their place in the planning process and how they can contribute as a planning preservation instrument. This paper hopes to contribute towards this effort through introducing how planning agreements have been used in the City of Casey.

3 Planning agreements

3. 1 Agreements in the context of planning law in Victoria, Australia

Planning is state based in Australia. The Commonwealth Constitution⁶ makes no reference to planning as a national matter. As a consequence, planning is left to Australia's states and territories. In Victoria, the Planning and Environment Act 1987 (P&E Act) is the principal statute overseeing land use and development proposals. The P&E Act provides the heads of power for land use and development approvals and each of Victoria's 79 municipalities are governed by planning schemes which specify zoning and other land use controls and overlays. Whilst municipalities are responsible at first instance for most planning decisions, there is the opportunity for a review of (some) municipal decisions by the planning tribunal⁷.

Planning agreements allow for municipalities to negotiate agreements with a land-owner to set out conditions or restrictions on the use or development of land, or to achieve other planning objectives in relation to land. The power to enter into these agreements arises under section 173 of the P&E Act. As with other agreements, section 173 agreements are contracts. However, the benefit of such an agreement is that it can be registered over the title to the land so that the owner's obligations under the agreement binds future owners and occupiers of that parcel of land⁸. A section 173 agreement can also be enforced in the same way as a permit condition or municipal planning scheme. Planning agreements therefore, are...