The law of instrument, or Maslow’s hammer is a version of the words “To someone with a hammer, everything looks a nail” It is a fair preface that aptly describes how referral authorities sometimes approach their role in advising local councils about planning applications.
This descriptor is not intended to be a criticism of the professionals within these authorities, rather recognition of the fact that all professionals tend to assess developments from the lens of their expertise and experience. It is common in all areas of life that peoples advice and opinions are shaped by their experience. There is nothing wrong with this. The experience is the reason council town planners seek their advice. However, somewhat paradoxically, seeking the advice does not mean the advice should be followed. The advice should not be overly relied on as the basis for decision making as our case study shows.
Case Study
In 2020 The EPA (Environmental Protection Agency) was a referral authority for a development application processed by our team that included a residential land use near to a large petrochemical facility. The development fell short of the recommended separation distance of 250 metres between a sensitive land use and a use with a potential negative health impact, specifically from air emissions and odour. Image 1 below forms an excerpt of the referral response from the EPA to council on the acceptability of the shortfall.
The feedback recommended a rigid application of the 250 metre separation but a reduced separation could be supported if there were sufficient mitigating factors demonstrated by the permit applicant.
Image 2 below is an excerpt from the same letter:
This was clearly beyond the scope of the purpose of the referral response as there were no planning controls affecting the site that related to contamination.
Based on the EPA requirements the permit applicant had to undertake a costly soil contamination report for the site and although there were no adverse findings the application was refused, inter alia because of the potential (not confirmed) presence of contaminated soil on the development site.
During a consequent planning appeal, VCAT accepted our submission that Council had incorrectly considered the EPA’s feedback on soil contamination as a relevant issue for the planning assessment. We were able to articulate to VCAT that the EPA’s role was confined to the separation distance and their opinion on matters not relevant to that role should not be accepted as the basis of a planning decision. The tribunal concurred with this view and found that soil contamination should never been a basis for refusing the planning permit. VCAT was satisfied that there were mitigating factors that meant the reduced separation distance was supportable. The development was approved, and construction was completed in early 2024.
Thoughts
This case study is demonstrative of the tendency for town planners to ‘accept – as – gospel’ the requirements of referral authorities. It is a difficult but necessary requirement for town planners to qualify those requirements.
If credible information is presented that refutes these requirements, it should be a reasonable expectation that a follow up negotiation with the referral authority is required. It is also perfectly acceptable for the feedback of the authority to be followed, followed in part or not followed if common ground cannot be met. The ability to exercise this discretion only applies where it is a ‘recommending’ referral authority in lieu of a ‘determining’ authority.
It is also relevant to point out that the professionals within these referral authorities are experts in their profession. It is reasonable to expect a technical professional to provide their feedback on what they know if solicited by decision makers. However, they are not knowledgeable on town planning requirements. Planners must reconcile how the professional advice fits within the planning assessment. Using another adage, it is incumbent on decision makers to ‘see the wood for the trees’ when assessing referral authority comments.